The UK Serious Fraud Office published a five-page memo Tuesday that tells companies the steps they should take if they decide to cooperate with the agency in an investigation.
The guidance doesn’t guarantee leniency in return for cooperation but says charging decisions will take cooperation into account.
“Cooperation means providing assistance to the SFO that goes above and beyond what the law requires,” the guidance says.
“It includes: identifying suspected wrongdoing and criminal conduct together with the people responsible, regardless of their seniority or position in the organization; 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.”
The SFO said 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.”
The SFO is now headed by an American lawyer, Lisa Osofsky. She took over in late August 2018.
Osofsky, a dual UK-U.S. citizen, is a Harvard Law grad. She served as an Assistant U.S. Attorney and worked at the FBI as Deputy General Counsel and Ethics Officer.
Lawyers have been asking for more guidance from the SFO about corporate cooperation and charging decisions.
The Serious Fraud Office used its first deferred prosecution agreement in late 2015. Since then it has used at least four more DPAs, including two in foreign bribery cases.
A short section of Tuesday’s guidance deals with the issue of so-called “de-confliction,” which involves a government agency asking a company to halt its own investigation so the government can be the first to interview witnesses.
“To avoid prejudice to the investigation,” the SFO guidance says, “consult in a timely way with the SFO before interviewing potential witnesses or suspects, taking personnel/HR actions or taking other overt steps.”
The guidance also tells companies to “refrain from tainting a potential witness,” and make employees and agents (where possible) available for SFO interviews, “including arranging for them to return to the UK if necessary.”
The SFO’s August 6, 2019 “Corporate Cooperation Guidance” is here.
Richard L. Cassin is editor at large of the FCPA Blog.