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August 9, 2019

SFO updates co-operation guidance for companies

The UK Serious Fraud Office has issued guidelines to assist in assessing co-operation from business entities under investigation, saying: “Co-operation by organisations benefits the public and advances the interests of justice… Co-operation will be a relevant consideration in the SFO's charging decisions…”

The SFO adds that ‘it is a public interest factor tending against prosecution when management has adopted a "genuinely proactive approach" upon learning of the offending’. Companies deemed to be co-operating would be going above and beyond what the law requires, including: 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.

However, co-operation does not guarantee any particular outcome. The nature of cooperation means that no checklist exists that can cover every case. Each case will turn on its own facts.

With regards to financial records and analysis, companies looking to co-operate would be required to:

  • Provide records that show relevant money flows.
  • Provide relevant organisational financial documents in a structured way, including bank records, invoices, money transfers, contracts, accounting records and other similar documents.
  • Alert the SFO to relevant financial material that the organisation cannot access —for example, bank accounts into which monies flowed from the organisation.
  • Make accountants and/or other relevant personnel (internal and/or external) available to produce and speak to financial records and explain what they are and what they show about money flows.
  • Create and maintain an audit trail of the acquisition and handling of financial material, and identify a person to produce the exhibits and cover continuity.
  • Provide financial information and calculations relevant to profit, disgorgement, financial penalty calculation and ability to pay.

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