UK Trends and Developments Contributed by: Neil Swift, Jasvinder Nakhwal, Charlotte Tregunna and Rachel Cook, Peters & Peters
Early engagement and timing The guidance strongly favours prompt self-reporting. A timely self-report will generally weigh in favour of a DPA rather than prosecution. The SFO aims to con - tact the reporting company within 48 business hours, decide on a formal investigation within six months, and conclude DPA negotiations within six months of invitation. These timeframes give companies greater certainty, although complex, multi-jurisdictional mat - ters may still take longer. Data preservation, investigations and privilege The SFO expects co-operation that goes beyond legal minimums. Companies should: • Preserve digital and hard-copy evidence in an evi - dentially sound format. • Consult the SFO early about internal investigations that could affect evidence. • Share non-privileged materials and factual summa - ries of wrongdoing. • Consider a voluntary waiver of privilege where it adds significant value to the investigation. Forum-shopping and tactical delays are discouraged. From a defence perspective, internal investigations must be designed with future co-operation in mind, balancing transparency with privilege protection, although how the SFO deals in practice with simul - taneous exposure in multiple jurisdictions remains to be seen. Deferred Prosecution Agreements and charging decisions Self-reporting and co-operation are now central to the DPA calculus. Companies that meet the SFO’s standards will, except in exceptional circumstances, be invited to DPA negotiations rather than face pros - ecution. However, the public interest test still applies, and prosecutors retain full discretion. The guidance also encourages prosecutors to con - sider alternative or overlapping charges, for example, pursuing failure to prevent fraud where bribery is dif - ficult to prove. Public interest factors such as prior misconduct, remediation and cultural reform will influ - ence outcomes.
For corporate counsel, the message is clear: early, genuine co-operation may significantly improve out - comes, but it must be credible, well documented and timely. Practical steps for companies include: • Mapping internal escalation triggers so suspected misconduct is reported quickly. • Aligning internal investigation protocols with SFO expectations. • Keeping contemporaneous records of compliance reviews and remedial action. • Approaching privilege waivers strategically. • Engaging early with regulators and law enforce - ment where appropriate. The new guidance provides both a challenge and an opportunity. It envisages that enforcement intensity will rise, but the framework for achieving leniency is now more transparent. Home Office Guidance on Failure to Prevent Fraud The Home Office published statutory guidance on 6 November 2024, explaining what constitutes “reason - able procedures” for the new “failure to prevent fraud” • A proportionate, risk-based approach tailored to the organisation’s size, sector and geography. • Strong governance, including board-level oversight and clear reporting lines. • Comprehensive risk assessments, due diligence on third parties, training and monitoring. • Continuous review of compliance frameworks, not just one-time implementation. For in-house lawyers and compliance officers, this guidance provides a practical benchmark. Companies should use it to test their anti-bribery and anti-fraud programmes, identify gaps and document remedial steps. (FTPF) offence under ECCTA. The guidance emphasises:
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