On 6 August 2019, the UK’s Serious Fraud Office (SFO) released Guidance on what it expects from organisations seeking cooperation credit in the agency’s investigations.
The long-awaited Guidance is a codified and clarified record of how the SFO will assess cooperative conduct. Previous Guidance on cooperation had come from speeches by senior SFO personnel, practitioners’ judgement and white-collar lawyers exchanging notes about their interactions with the agency. Issuing the Guidance also marks a change of tack by new SFO Director Lisa Osofsky. In 2012, the previous Director of the SFO, David Green, scaled back Guidance on self-reporting to restate the agency’s posture as being a prosecutor first.
The Guidance can serve as a useful reference for organisations and their counsel when negotiating settlements with the SFO, but it comes with few assurances.
The Guidance, which must be read together with the Guidance on Corporate Prosecutions and the Deferred Prosecution Agreement Code of Practice, has a number of key takeaways:
First and foremost, the Guidance lays out how to collect, handle and produce evidence. The guidelines aim to maintain the integrity of evidence and facilitate the SFO’s review. Experienced UK white-collar practitioners have been adopting these procedures for some time, but the Guidance serves as a useful reference point for future productions.
In terms of the substance of what is shared with the SFO, the SFO also encourages organisations to identify and offer up details of information that the organisation cannot access or does not control: namely, details of third-party bank accounts and private emails of employees. While organisations may have such third-party details, the implications of personal data privacy regulations (including GDPR) should be carefully evaluated before organisations hand such information to the SFO.
The Guidance emphasizes the SFO’s stance that organisations seeking cooperation credit should be prepared to waive legal privilege on notes and transcripts of witness interviews. The Guidance states that an organisation that does not waive privilege will not be penalised by the SFO, but taking such an approach may impact the organisation’s eligibility for a DPA. It is also worth noting that waiving privilege on such documents could also result in the documents being subject to discovery by adverse parties in a subsequent civil litigation.
Organisations and their counsel have long asserted privilege over notes of interviews with witnesses and, in some cases, only shared summaries or given oral downloads of interview accounts to the SFO. The UK Court of Appeal recently held (against the SFO) that, in certain circumstances, such interview notes are subject to legal privilege. The Guidance is a reminder that the battle between regulator and defence counsel is far from over, and the SFO is not backing away from trying to get its hands on interview accounts.
The SFO expects cooperating organisations to make the SFO aware of key developments involving witnesses, for example, the scheduling of interviews and disciplinary proceedings. The Guidance also discusses the issue of so-called “de-confliction,” where an investigating agency asks an organisation to suspend its own witness interviews so that it can be the first to interview.
The Guidance encourages organisations to consult the SFO before interviewing potential witnesses taking HR actions or other overt steps. Such “de-confliction” requests can raise concerns for organisations who want to exert control over their business affairs, on the one hand, while seeking cooperation credit, on the other. When faced with such requests, organisations and their counsel should carefully examine the request and whether business needs or other circumstances make compliance with the request untenable. Engaging in a conversation with the regulator and considering alternative solutions (for example, narrowing the list of employees or scope) that address both sides’ concerns can be a useful way to strike a balance.
The Guidance says providing information on other actors in the relevant market will be deemed as cooperative. Before offering up information on others, organisations should consider whether the disclosures could trip up any confidentiality agreements in place with industry players, industry best practices or lead to a new line of questioning as to how the organisation obtained the information in the first place. Sharing general industry practices and potential defences particular to the industry, on the other hand, which the Guidance also welcomes, comes with fewer risks.
While the Guidance is a useful reference tool, it is conspicuously silent on the specific benefits that cooperative conduct will bring to organisations, such as discounts on fines and the SFO refraining from using its compulsion powers. The SFO itself states in the Guidance that robust cooperation will not guarantee a lenient outcome. With little by way of tangible incentives for organisations that adopt the SFO’s guidelines, the need for careful assessment and a sound strategy when negotiating with the SFO remains.