On 6 August 2019, the UK Serious Fraud Office (SFO), the prosecuting authority responsible for tackling serious or complex fraud and bribery in the UK, published updated guidance on corporate cooperation (the Guidance)¹.

The five-page document provides a non-exhaustive list of good practices that organisations should follow in cooperating with the SFO, with a view to potentially being offered the opportunity to enter into negotiations for a deferred prosecution agreement (DPA). However, the Guidance makes it clear that even “full robust cooperation” does not guarantee a DPA.

The Guidance builds on the cooperation provisions contained in the DPA Code of Practice, and demonstrates the SFO’s continued efforts to encourage organisations to report wrongdoing and to use DPAs to resolve cases where an organisation is willing to provide extensive cooperation².

This increased transparency from the SFO on what organisations can expect once they have made a self-report to the authority is welcomed by organisations and their legal advisers.

The Guidance sets forth detailed provisions on the SFO’s expectations regarding the preservation and provision of materials relating to digital and hard-copy evidence, financial records and analysis, industry and background information, dealing with individuals connected to the investigation, and more contentious issues such as witness accounts and waivers of privilege.

Much of the Guidance affirms the dicta found in DPA court judgments and consolidates the expectations communicated by the SFO in various public statements and via its engagement with organisations under SFO investigation. In November 2018 Lisa Osofsky, the Director of the SFO, explained that corporate cooperation means “making the path to a case easier” for the prosecutor, indicating that the SFO expects cooperating organisations to provide the SFO with evidence it does not already have, and to guide the SFO investigation to help it focus on the most relevant lines of enquiry³.

The Guidance affirms this position, providing that “cooperation means providing assistance to the SFO that goes above and beyond what the law requires,” and that this includes identifying individuals involved in the misconduct.

However, the Guidance also contains a number of new, more controversial elements, including:

• Instruction of independent counsel for all privilege claims: the SFO will expect organisations claiming privilege over materials to instruct independent counsel to certify that the material is privileged. This provision is a departure from current practice and suggests the SFO suspects that some organisations and their legal advisers are misusing privilege. In addition to being an additional cost for organisations under investigation, this new obligation may ultimately prove to be counterproductive for the SFO – adding another layer to an already lengthy investigation process, with the risk that independent counsel may adopt a more robust approach to privilege than the organisation.
• Support SFO’s disclosure obligations in its prosecution of individuals: under the Guidance, organisations are expected to assist the SFO in identifying material that might reasonably be considered capable of assisting any potential accused or undermining the prosecution’s case⁴. This expectation for organisations to support the SFO in its disclosure obligations is consistent with the overarching message that emerges from the Guidance, which is that the SFO is seeking to rely on organisations’ internal investigations to advance their own investigation process.

Good practices – key takeaways

The Guidance provides that cooperating organisations should comply with the following practices:

Record-keeping and data

• Provide materials in a useful and structured way. For digital materials, organisations should also supply details of search terms, “seed sets” or other search methodologies applied to identify relevant documents. It is clear from the Guidance that the SFO will prefer a targeted approach to the provision of relevant materials.
• Maintain good records/audit trails of the collection and handling of materials relating to the investigation. The preservation of materials and the recording of all steps taken from the outset of the discovery of the misconduct will help maintain the integrity of the investigation, and will be an easy way for organisations to earn cooperation credit.

Third parties

• Identify relevant material in the possession of third parties and assist the SFO in obtaining it. The Guidance also provides that organisations should inform the SFO about relevant material that the organisation cannot access, such as messaging apps and bank accounts covering money flows connected to the investigation.

Overseas materials

• Provide relevant material that is held abroad, where it is in the possession or control of the organisation. An organisation will need to consider the extent to which it has custody or control over documents held by subsidiaries or overseas branches⁵.

Interviews

• Consult with the SFO before interviewing potential witnesses or suspects, taking HR actions or other overt steps. The Guidance also provides that organisations should refrain from tainting a potential witness’s recollection, for example by sharing statements made by other people or showing the witness documents they have not previously seen.

Many of these practices are standard to any large scale corporate investigation, but assisting the SFO to obtain information outside the organisation’s reach may prove to be challenging in certain circumstances and the Guidance has clearly been drafted to hedge against a future appeal court ruling on the extraterritorial reach of the SFO’s compelled powers under Section 2.

Witness accounts and privilege

The SFO has long expressed its view that the provision of witness accounts will be seen as a significant mark of cooperation and this position is reflected in the DPA Code of Practice. The Guidance provides that:

“Organisations seeking credit for cooperation by providing witness accounts should additionally provide any recording, notes, and/or transcripts of the interview and identify a witness competent to speak to the contents of each interview.”

In accordance with the Guidance, an organisation’s failure to waive privilege and witness accounts means that it will not attain the corresponding factor against prosecution contained in the DPA Code of Practice, but that the organisation will not be penalised by the SFO. This suggests that while organisations may lose some cooperation credit in these circumstances, they will not automatically be deprived of a DPA if they can demonstrate other cooperative factors that would point against a public interest in prosecuting the organisation, as set forth in the DPA Code.

Organisations seeking to engage in DPA negotiations should agree a clear process or protocol for handling and recording witness interviews from the outset of their engagement with the SFO.

Conclusion

The central theme evident in the Guidance is that the SFO expects organisations to conduct thorough and well-recorded investigations that the authority can rely on to advance the investigation process and prosecute individuals. While the SFO will undertake its own independent assessment of the case it would be helpful for the SFO to provide clarity on the extent and nature of this assessment so as to reassure cooperating organisations who comply with this Guidance that they will not face undue delay by the SFO when deciding whether to recommend a DPA⁶.

Footnotes

1) Corporate Cooperation Guidance, SFO Operational Handbook (6 August 2019).

2) Deferred Prosecution Agreements Code of Practice (February 2014), SFO and Crown Prosecution Services (CPS).

3) Keynote address at the FCPA Conference, Washington, D.C.

4) This appears to refer to a prosecutor’s duty to disclose materials to the accused under section 3 of the Criminal Procedure and Investigations Act 1996 (“CPIA 1996”).

5) This provision appears to refer to the decision of R (on the Application of KBR Inc) v. The Director of the Serious Fraud Office [2018] EWHC 2368 (Admin) where the UK High Court held that the SFO can require foreign companies to produce documents held outside the UK, where there is a “sufficient connection” between the overseas company and the UK. The UK Supreme Court has granted KBR leave to appeal this decision.

6) See the requirement at para 2.2(ii) of the DPA Code of Practice for the SFO to be satisfied that the “full extent of the alleged offending has been identified.”