SFO publishes Corporate Cooperation Guidance
This week the UK Serious Fraud Office (“SFO”) issued guidance on what it considers corporate cooperation for purposes of a deferred prosecution agreement. The guidance describes what the SFO expects companies to do with respect to providing and preserving materials, providing witness accounts and waiving legal privilege over investigative materials.
The SFO has stated repeatedly that it considers cooperation to be a key consideration in the SFO’s charging decisions – particularly when it comes to decide about whether or not to enter into a deferred prosecution agreement. Whereas cooperation of itself may not always guarantee an outcome, it will undoubtedly a key factor in the SFO’s decision making process.
The SFO considers cooperation to be going “above and beyond what the law requires”. One might think in this respect of a company’s efforts to identify suspected wrongdoing as well as the discovery of who is responsible for the wrongdoing as well as subsequent reporting thereof to the SFO – including the preservation and handing over of evidence to the SFO. The guidance provides practical examples of what is considered good practice, including the preservation and compilation of documents and materials in a structured way; the preservation and provision of passwords and recovery keys for digital devices etc.
One of the more contentious parts of the guidance relates to the issue of claiming privilege over witness accounts, because the guidance proposes independent counsel to certify that the relevant material is indeed privileged. It furthermore remains unclear whether companies are required to waive privilege over witness accounts in order to be considered as cooperating in the eyes of the SFO.
The guidance can be downloaded here.