UK SFO: the ingredients of cooperation

Our previous blog examined the self-reporting elements of the SFO’s new guidance – that only in exceptional circumstances will the combination of a self-report and full cooperation result in a prosecution rather than an invitation to discuss a DPA.

In this blog we take a closer look at what the new guidance says about cooperation.

There are 20 ways to cooperate in the new guidance, many of which will be familiar from previous guidance. The (non-exhaustive) list includes preserving and handing over evidence (including witness interviews) and identifying (a) material within the company’s control held overseas, and (b) potentially relevant third party materials.

What has changed in 2025?

• ‘Forum shopping’: Added to the list of what the SFO does not regard as cooperation is ‘forum shopping’ by ‘unreasonably’ reporting offending to another jurisdiction for strategic reasons (for example to exploit differences between international agencies or legal systems). The previous guidance had merely asked for the SFO to be informed if an organisation had reported in another jurisdiction, so this does appear to be a hardening of the SFO’s stance on what it may regard as ‘unreasonable’ overseas reporting.

• Internal investigations: The SFO implicitly acknowledges that many corporates will be conducting an internal investigation even where the SFO has already become aware of the issue. The old guidance asked corporates to be careful with internal interviews, but the SFO’s explicit expectations for internal investigations in the new guidance go further, e.g. it wants:
  • Early engagement on ‘the parameters’ of the investigation.
  • ‘Timely updates’, including key findings.
  • The facts gathered during the investigation.

• Additional information: The SFO’s requirements on what a corporate must provide have also slightly developed. For example, this must now include:
  • Details of previous relevant corporate misconduct and how it was resolved.
  • A thorough analysis of the compliance program and procedures in place at the time of the offending, and how any deficiencies have been/are being remediated.

Exemplary cooperation

A company that takes all the steps in the guidance is ‘likely to be assessed’ as providing exemplary cooperation. This can cure a lack of a self-report. 

If a company self-reports, it only has to provide ‘full cooperation’. We are not sure how much difference there will be in practice between what the SFO regards as full versus exemplary cooperation. Previous DPAs with companies who have offered ‘exemplary’ or ‘extraordinary’ cooperation suggest that it includes waiving privilege over interview notes and internal investigation reports – and certainly the tone of the guidance suggests that waiving privilege is regarded as a ‘significant cooperative act’ which can ‘help expedite matters’.

Comment

Many businesses will hope never to have to consider this guidance in any detail. It will only be relevant if an allegation of misconduct arises that could constitute a criminal offence and bind the corporate entity (the bar for which is increasingly being lowered due to the new senior manager test of attribution for economic crimes introduced on 26 December 2023, and likely to be expanded to all crimes under the Crime and Policing Bill). 

The SFO will hope to have an era of increased enforcement to come. Wider pre-investigation powers, the new failure to prevent fraud offence, and the new senior manager test of corporate attribution have given corporate prosecutors a significant boost. 

Only time will tell whether the SFO Director Nick Ephgrave will get his wish of being able to reward UK whistleblowers – if he does, that would likely increase reports of wrongdoing made direct to the SFO. The SFO has announced that it will be making the case for whistleblower incentives as part of a government-sponsored fraud review that is currently taking place.