On April 24, the Serious Fraud Office published an external guidance on corporate cooperation and enforcement in relation to corporate crimes. The guidance encourages companies to self-report suspected criminal activity.
This, among others, would include Indian companies operating in the UK and UK Companies having subsidiaries in India. This guidance outlines key considerations when deciding whether or not to charge a corporate or invite it to enter into a Deferred Prosecution Agreement negotiation. In such cases, the aspect of self-reporting is a fork in the road that many companies often find themselves at. To make it an easier decision, the guidance provides that in cases where a company (i) self-reports promptly; and (ii) also cooperates fully with the SFO; such company will be invited to negotiate a DPA, unless exceptional circumstances apply.
The SFO considers self-reporting of suspected corporate criminal conduct to be the mark of a responsible organisation. The reporting needs to be timely and is considered a sign of mitigation. The guidance also provides that responsible corporates may consider it necessary to investigate suspicious conduct before self-reporting in order to understand the nature and extent of such offending behaviour. It is not necessary that such investigation be fully investigated prior to self-reporting. Interestingly, the guidance provides that where a corporate has not self-reported, the SFO will have regard to whether it was aware of the offending behaviour before their investigation began (presuming there is one in the first place).
Interestingly, the guidance provides that where a corporate maintains a valid claim of legal professional privilege over relevant materials, it will not be penalised for doing so. Cooperation during the course of an investigation would mean providing assistance to the SFO that goes above and beyond what the law requires. The guidance also provides examples of non-exhaustive lists of cooperative conduct that a corporate can take.
