On the 16th August 2019, the Serious Fraud Office (‘SFO’) published guidance concerning cooperation by companies subjected to SFO investigations as the result of being at risk of having committed a corporate criminal offence, namely fraud, bribery and the failure to prevent the facilitation of overseas tax evasion.
Cooperation is essential for any company hoping to negotiate a deferred prosecution agreement and will amount to a mitigating factor in respect of sentencing in the event that a conviction results following criminal charges.
Cooperation | Kangs Serious Fraud Solicitors
Cooperation is regarded as that ‘providing assistance to the SFO that goes above and beyond what the law requires’ and includes:
- Identifying suspected wrong-doing and criminal conduct together with the people responsible, regardless of their seniority or position,
- reporting this to the SFO within a reasonable time of the suspicions coming to light,
- preserving evidence and providing it promptly in an evidentially sound format.
The SFO makes it clear that genuine cooperation is inconsistent with activity such as:
- protecting specific individuals or unjustifiably protecting others,
- putting subjects on notice and creating a danger of tampering with evidence or testimony,
- silence about selected issues,
- tactical delay or information overloads.
The SFO has made it clear that even with full, genuine and robust cooperation no particular outcome is guaranteed. Each case will be determined on its own facts. However, the extent of an organisation’s cooperation is one of the factors which will be taken into account when the decision making is made to finalise the investigation.
Even when an organization has fully cooperated, the SFO may exercise its powers to obtain relevant material or interview witnesses. Compliance with compulsory processes is not indicative of cooperation and the use of compulsion does not necessarily indicate the SFO regards the organization as non-cooperative.
How Can We Help? | Kangs SFO Criminal Investigations Lawyers
It is clear that, as a result of this latest SFO guidance, it would be prudent for companies to immediately review all relevant existing procedures, protocols and practices to ensure that inadvertent breaches of the guidance are avoided.
Please feel free to contact our team through the following: