On August 6, 2019, The UK Serious Fraud Office published new guidance on corporate cooperation. Cooperation will be relevant to the SFO’s decision in a case as to whether or not the charge a corporate and/or offer a corporate a deferred prosecution agreement.
The guidance sets out the SFO’s expectations of how organisations should interact with the SFO if they wish to obtain cooperation credit. In summary, the SFO expects organisations to go beyond the requirements of the law in order to identify suspected wrongdoing and the people responsible, and to report relevant information to the SFO within a reasonable time. The guidance also sets out the SFO’s expectations regarding the preservation of evidence and how to provide it to the SFO, including the approach to different forms of evidence, such as digital evidence, hard copy or physical devices, financial records and analysis and the approach to interviewing and taking employment action in relation to potential witnesses and suspects.
The guidance separately addresses the SFO’s views on privilege and witness accounts. It sets out that organizations seeking cooperation credit should provide recordings, notes and transcripts of witness interviews and that any claims of privilege must be properly established, and certification by independent counsel should be provided. An organization that does not waive privilege and provide witness accounts will not receive the cooperation credit set forth in the Deferred Prosecution Agreements Code of Practice, but will also not be penalized by the SFO.