For years, the United Kingdom Serious Fraud Office has been modeling U.S. Department of Justice policies and procedures relevant to prosecuting alleged instances of corporate crime.
Thus, it is not surprising that early this week the SFO released this internal guidance document to assist prosecutors “in assessing the co-operation from business entities.”
The introduction section of the guidance states:
“Co-operation by organisations benefits the public and advances the interests of justice by enabling the Serious Fraud Office (“SFO”) more quickly and reliably to understand the facts, obtain admissible evidence, and progress an investigation to the stage where the prosecutor can apply the law to the facts.
Co-operation will be a relevant consideration in the SFO’s charging decisions to the extent set out in the Guidance on Corporate Prosecutions and the Deferred Prosecution Agreements Code of Practice. According to the Guidance on Corporate Prosecutions, it is a public interest factor tending against prosecution when management has adopted a “genuinely proactive approach” upon learning of the offending. Cooperation can be an important part of such a genuinely proactive approach (DPA Code 2.8.2(i)).
Co-operation means providing assistance to the SFO that goes above and beyond what the law requires. It includes:. identifying suspected wrongdoing and criminal conduct together with the people responsible, regardless of their seniority or position in the organisation; reporting this to the SFO within a reasonable time of the suspicions coming to light; and preserving available evidence and providing it promptly in an evidentially sound format.
Genuine cooperation is inconsistent with: protecting specific individuals or unjustifiably blaming others; putting subjects on notice and creating a danger of tampering with evidence or testimony; silence about selected issues; and tactical delay or information overloads.
It is important that organisations seeking to cooperate understand that co-operation —even full, robust co-operation —does not guarantee any particular outcome. The very nature of cooperation means that no checklist exists that can cover every case. Each case will turn on its own facts. In discussing co-operation with an organisation, the SFO will make clear that the nature and extent of the organisation’s co-operation is one of many factors that the SFO will take into consideration when determining an appropriate resolution to its investigation. The SFO will retain full and independent control of its investigation process.
Many legal advisers well understand the type of conduct that constitutes true cooperation. This will be reflected in the nature and tone of the interaction between a genuinely co-operative organisation, its legal advisers and the SFO. Nonetheless, some indicators of good practice are listed below, as are examples of steps which the SFO may ask an organisation to take. This is not a complete list; some items will be inapplicable (or undesirable) in certain cases and it is not intended to, nor does it, create legally enforceable rights, expectations or liabilities.”
The guidance document is divided into two main sections: preserving and providing material and witness accounts and waiving privilege.
As to the former, the document contains a general lists of “good general practices” including the following:
- Obtaining and providing material promptly when requested to respond to SFO requests and meeting agreed timelines;
- Providing material in a useful, structured way;
- Identifying relevant material that is in the possession of third parties as well as perhaps facilitating the production of third party material; and
- Assisting in identifying material that might reasonable be considered capable of assessing any accused or potential accused or undermining the case for the prosecution.
The guidance document also contains specific information about digital evidence and devices; hard-copy or physical evidence; financial records and analysis; industry and background information (including providing information on other actors in the relevant market); and individuals (including consulting in a timely way with the SFO before interviewing potential witnesses or suspects, taking personnel/HR action or taking other overt steps).
It is troubling from a policy standpoint when any law enforcement agency considers factors not required by law in making its charging decisions. However, that is now what U.K. law enforcement, like U.S. law enforcement, will be doing.
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