International Regulatory Enforcement (PHIRE)

U.K. Serious Fraud Office Issues New Cooperation Guidance

August 13, 2019

Simon Airey, Matt Herrington, Tom Best, Morgan J. Miller, Jon Drimmer & Timothy Work

The U.K. Serious Fraud Office issued new "Corporate Cooperation Guidance" on 6 August 2019, setting out a range of different considerations the agency will use to assess a company's cooperation when making charging decisions or supporting a company's application for a Deferred Prosecution Agreement. The Guidance represents a shift in approach and an attempt to provide more clarity and specificity as to the factors that the SFO will take into account when assessing whether a company's management has adopted a "genuinely proactive approach" after learning about the offending. This more pragmatic position under new SFO Director Lisa Osofsky moves closer to the policies and practices of the U.S. Department of Justice. However, differences remain and companies ought to carefully consider their position before seeking to make a voluntary disclosure to the SFO or embarking on an internal investigation if an SFO investigation is already underway.

  • The Guidance lists 32 "indicators of good practice" and "examples of steps that the SFO may ask an organisation to take."

  • The SFO emphasizes that this is "not a complete list" and that the nature and extent of a company's cooperation is just "one of many factors."

  • While the Guidance signals a more collaborative approach, it states that even "full, robust co-operation" does not "guarantee any particular outcome."

  • The Guidance brings closer alignment with the U.S. DOJ's approach, but key differences remain, and the Guidance lacks clarity in several respects.

For additional information, please see our client alert.

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