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SFO's New Guidance on Corporate Co-operation13th August 2019 Business Crime
Last week the SFO released guidance on co-operation from organisations under investigation.
The guidance details how co-operation plays a part in the SFO’s charging decisions as set out in their Guidance on Corporate Prosecutions and the Deferred Prosecution Agreements Code of Practice. In relation to co-operation, the DPA Code sets out that it is a factor tending against prosecution when management has adopted a ‘genuinely proactive approach’ upon learning of offending. However, co-operation does not guarantee any particular outcome.
The new guidance sets out that co-operation means providing assistance to the SFO that goes above and beyond what the law requires, such as:
Identifying suspected wrong-doing and criminal conduct;
Identifying the people responsible, regardless of their seniority or position;
Reporting to the SFO within a reasonable time;
Preserving available evidence; and
Providing it promptly in an evidentially sound format.
However the guidance notes that this is by no means a checklist, each case will turn on its own facts.
The guidance goes on to provide a long list of indicators of good practice as examples of steps the SFO may ask an organisation to take to show co-operation with an investigation, for example in relation to the preservation and provision of material, audit trails and internal investigations.
The SFO has of course been in the headlines in relation to the landmark ruling on legal privilege. This guidance addresses the issues of witness accounts and waiving privilege. It states that the existence of a valid privilege claim must be properly established with certification from independent Counsel. If privilege is not waived the corporation will not attain the corresponding factor against prosecution but will not be penalised by the SFO.
A copy of the guidance can be found here.