The paper contains recommendations for companies on how to behave at the stage of preliminary investigation so that to have the possibility to conclude a Deferred Prosecution Agreement (DPA) with law enforcement.

Specifically, the document foresees for the first time – similar to the US approach – a direct indication that in case of timely self-reporting and full cooperation of an organisation with the investigation, the former can seek a DPA instead of prosecution.

The question of what kind of self-reporting can be considered “timely” remains open in the Guidance which indicates that a reasonable term will depend on the circumstances: some companies, for example, may consider it necessary to first undertake their own investigation into a suspected offence in order to understand its character and scale even if the SFO does not require to carry out a mandatory internal investigation for self-reporting.

Companies should submit the information on offences to the attention of the Intelligence Division of the SFO; to this end, they can use a secure reporting form. The information submitted should contain all known facts and evidence regarding the alleged offences, the persons involved (both inside and outside the organisation) and relevant jurisdictions. The tip on an offence submitted through the Suspicious Activity Report* or submission of information about an offence to an agency different from the SFO, either domestic or foreign, will not be considered as self-reporting for the purposes of the Guidance in case the information about the offence is not submitted in parallel to the SFO.

Within 48 hours from the disclosure prosecutors will try to get in contact with the organisation. The SFO commits to keeping the company that has self-reported informed about the status of processing of the report, stressing that the decision on whether to start the investigation is normally taken within six months. A similar approximate term is established by the document also for the decisions on the conclusion of a DPA.

Additionally, the Guidance highlights that the degree of further cooperation of the organisation that has self-reported with the investigation will be a key factor for taking a decision on the outcome of the case (through the conclusion of a DPA or a court trial) and the sanctions.

The prosecutors of the SFO expect that full cooperation will mean the provision of assistance beyond the legal requirements; the agency, notably, favours (even if does not request) the refusal to protect data under the legal professional privilege. Besides that, due cooperation, in the opinion of the agency, should be proactive, transparent and prompt. The SFO expects that companies do not only provide all documents at their disposal but also assist in their structuring and explaining: for example, provide original documents, explanations of technical aspects, reference information, and support translation or deciphering of materials. Identification of key evidence and the persons involved both inside the organisation and beyond it is also welcome. In case of internal investigations it is recommended that companies provide all their findings, including transcripts of interviews with employees, and inform the investigation about any parallel action such as internal disciplinary measures and notifications of regulatory authorities.

The document also provides the examples of behaviour that demonstrates insufficient cooperation, for instance, delays in the provision of information, provision of incomplete data, destruction of potential evidence, concealment of the persons involved or evasion from the participation in investigative actions, attempts of unfounded reporting of an offence to a different jurisdiction for strategic reasons.

The Guidance highlights at the same time that full cooperation as such does not guarantee the conclusion of a DPA: the character and degree of cooperation of the organisation are only one of the many factors that the SFO will take into account in making a decision, enshrined, in particular, in the Code for Crown Prosecutors, Corporate Prosecution Guidance and the Deferred Prosecution Agreements Code of Practice. Furthermore, in exceptional cases even in case of timely self-disclosure and full cooperation the decision to initiate criminal prosecution instead of inviting to discuss the conclusion of a DPA can be taken.

*A Suspicious Activity Report (SAR) in the UK means reporting of suspicious financial activities that is forwarded to the National Crime Agency (NCA). SARs must be submitted by banks, insurance companies, accountants, lawyers, real estate agents and other organisations and natural persons having information or reasonable suspicion that the money or property are related to money laundering or financing of terrorism.