The SFO has published guidance for corporates aimed at helping them to understand what it means by “co-operation” when it is considering its charging decisions. The SFO says it is assistance that goes above and beyond what the law requires. It gives examples of what it is likely to consider falls within this:
- identifying suspected wrong-doing and criminal conduct and who is responsible, regardless of that person’s seniority or position within the organisation;
- reporting to the SFO within a reasonable time of suspicions coming to light; and
- preserving and providing evidence promptly in an evidentially sound format.
Conversely, genuine co-operation is not consistent with protecting specific individuals or blaming others unjustifiably; putting subjects on notice and creating the opportunity to tamper with evidence or testimony; keeping silent on particular issues; or tactical delay or information overloads.
Compliance with a compulsory process does not of itself signify co-operation, but equally, use of compulsion does not automatically mean the SFO will regard the organisation as non-co-operative.
The SFO stresses that even full, robust co-operation does not guarantee any particular outcome. It notes that most legal advisers understand what it means, but provides a fuller list of practical things that should be done.
Do check out the follow-up article which contains a more in-depth analysis on this guidance.