In what was a busy week for the Serious Fraud Office (SFO), much of the attention has focused on the launch of its new streamlined ‘External Guidance on Corporate Co-Operation and Enforcement in relation to Corporate Criminal Offending’ on 24 April 2025.
Faced with dwindling levels of self-reporting, cooperation and negotiated settlements for economic crime, the new Guidance and strategy is designed to give companies a direct route and greater incentive to self-report by clearly linking self-reporting to Deferred Prosecution Agreement (DPA) eligibility for the first time, and by setting out the SFO’s expectations for cooperation in order to receive an invitation to negotiate a DPA settlement. Corporates will be able to report suspected wrongdoing directly to the SFO’s intelligence unit, via a secure portal.
Background to the new Guidance and strategy
This development is understandable (if not overdue), given the relatively low level number of DPAs agreed since their introduction in 2014 – the SFO has entered into only a dozen DPAs in that period, and the Crown Prosecution Service has agreed just one. There have also been no DPAs since 2021.
What’s more, there have been high profile cases, such as Rolls-Royce and Airbus, where neither company self-reported voluntarily, but ultimately negotiated DPAs. In aggregate, this has contributed to a sense that companies may be better off choosing not to self-report, and then making a virtue out of cooperation in the (relatively unlikely) event that the SFO (or any other authorities) were to uncover the wrongdoing independently.
The SFO first signalled its determination to change the tide and incentivise self-reporting and boost the number of DPAs last September, and expressly noted its intention to do so in anticipation of increased corporate engagement in relation to the new ‘failure to prevent fraud’ offence, which comes into effect on 1 September 2025.
Key points to note
Under the new Guidance, "genuine cooperation" would include preserving digital and physical evidence, providing a presentation of the suspected criminal conduct, engaging in early communication with the SFO about any ongoing internal investigation, and cooperating with the SFO’s own investigation. Talk of ‘cooperation’ in this context has tended to involve pressure from the SFO around waiving legal privilege.
With the new Guidance, the SFO continues to note that while companies will not be punished for declining to waive privilege, waiving privilege in relation to relevant material will be a "significant co-operative act, and it can help expedite matters." Whether and how to waive privilege will remain a difficult and complex decision for corporates, especially where authorities in multiple countries may be involved, and given the risk of collateral waiver, particularly in jurisdictions without a ‘limited waiver’ doctrine akin to that of English law.
Other key highlights include that the SFO will seek to:
- Contact self-reporting corporates within 48 business hours of a self-report or other initial contact.
- Regularly update a self-reporting corporate throughout the process.
- Decide whether or not to open an investigation within six months of a self-report.
- Conclude its investigation within a reasonably swift time frame.
- Conclude DPA negotiations within six months of sending an invitation.
The SFO's External Guidance on Corporate Co-Operation and Enforcement in relation to Corporate Criminal Offending is available here.
