On August 16, 2019 the United Kingdom’s Serious Fraud Office (SFO) posted their Corporate Co-operation Guidance (the “Guidance”)(1). The Guidance makes it clear that co-operation(2) “will be a relevant consideration in the SFO’s charging decisions to the extent set out in the Guidance on Corporate Prosecutions(3) and the Deferred Prosecution Agreements Code of Practice(4).”(1)
However, after laying out the potential for co-operation the Guidance makes it clear that “even full, robust cooperation”(1) does not guarantee an outcome and that each case will be determined separately. The Guidance lists a few indicators that would indicate a co-operating organization, including:
Preserving and providing material;
Providing witness accounts; and
Compliance with compulsory processes initiated by the SFO
Guidance with a compulsory process by itself is not sufficient to indicate co-operation.
Preserving and providing material would include, but is not limited to the following:
Good general practices - which includes, but is not limited to, preservation of both digital and hard copy relevant material, obtaining and providing material promptly, providing material in a useful and structured manner, etc;
Providing digital evidence in a format the SFO requests, creating and maintaining an audit trail for digital evidence and devices, alerting the SFO to relevant material that cannot be accessed by the organisation, preserving passwords, decryption keys, etc;
Creating an audit trail for hard copy evidence;
Providing relevant financial records and money flows, creating an audit trail for handling of financial material, etc.;
Providing industry knowledge, context, and common practices; and
Identifying potential witnesses, making employees available, and disclosing documents shown to the employees.
Organizations seeking co-operation credit should provide all witness accounts including any recording, notes and/or transcripts of interviews and identify competent witnesses. An organization will not be penalized for not waiving privilege, but a valid privilege claim must be established.
Guidance on establishing a “valid privilege claim” requires the organization to “provide certification by independent counsel that the material in question is privileged.(1)” It’s important to note that while the organization will not be penalized for refusing to waive privilege the Guidance states that the organization will not be able to take advantage of the “corresponding factor(5) against prosecution that is found in the DPA Code”.
Contact the professionals at GCSG for more information on this development.
UK SFO - “Corporate Co-operation Guidance” - 16/08/2019
Co-operation means providing assistance to the SFO that goes above and beyond what the law requires. It includes: identifying suspected wrong-doing and criminal conduct together with the people responsible, regardless of their seniority or position in the organisation; reporting this to the SFO within a reasonable time of the suspicions coming to light; and preserving available evidence and providing it promptly in an evidentially sound format.(1)
UK - “Deferred Prosecution Agreements Code of Practice” (DPA Code)
DPA Code: paragraph 2.8.2(i) - “Co-operation: Considerable weight may be given to a genuinely proactive approach…Co-operation will include identifying relevant witnesses, disclosing their accounts and the documents shown to them. Where practicable it will involve making the witnesses available for interview when requested. It will further include providing a report in respect of any internal investigation including source documents. “(4)