UK Law and Practice Contributed by: Ben Morgan, Ali Sallaway, Matthew Bruce and Emily Knight, Freshfields
• providing material to the SFO in a useful, structured way; • assisting in identifying material that might rea- sonably be considered capable of assisting any accused or potential accused or under- mining the case of the prosecution; • creating and maintaining an audit trail of the acquisition and handling of hard copy and physical material, and identifying a person to provide a witness statement covering conti- nuity; • providing records that show relevant money flows; • identifying potential witnesses, including third parties; and • making employees and (where possible) agents available for SFO interviews, includ- ing arranging for them to return to the UK if necessary. The list is neither exhaustive nor prescriptive; the SFO acknowledges that each case will be differ- ent, and a co-operating company will not neces- sarily display all of the enumerated behaviours nor achieve a particular outcome even if it does. Based on the Guidance, the main hallmarks indi- cating co-operation are likely to include: • preserving and producing data in a forensi- cally sound manner; • providing information to the SFO in a useful, structured way; • briefing the SFO on the relevant background, including on the industry, the facts at issue, other actors in the market and other poten- tially interested authorities; • taking care to protect the reliability of witness accounts; • not asserting privilege “lightly” this is an especially important issue that businesses have to manage carefully, as the language of the Guidance is particularly strong on this
point, signalling that the SFO is continuing its robust stance and willingness to test claims of privilege over internal investigation materi- als; and • providing the SFO with witness accounts and related materials – if doing so involves the waiver of privilege, that will also be an indica- tor of co-operation. The draft revisions to the Guidance are currently subject to review, with final updated Guidance expected later in 2025. Although the SFO has led the way in provid- ing clarity on the meaning and outcome of co- operating with enforcement agencies, there are numerous other agencies in the UK with which a company may need to co-operate, depending on the sector in which they operate and the issues at hand, and these agencies all typically have infor- mal or formal means to co-operate to achieve a reduction in penalties. These agencies include HMRC, the FCA, the CMA, the NCA, the CPS, the ICO and more. The level and type of co-oper- ation expected from each of these agencies is not standardised. While it is likely that similar princi- ples will apply, if a company finds itself dealing with a new government agency, identifying those with direct experience of the expectations and real-life practice of that agency will be essential. There has been some clarification on the poten- tial approach of the courts when considering co- operation with these authorities, with a recent criminal fine imposed on a leading retail bank for anti-money laundering (AML) failings being reduced due to the bank self-reporting and co- operating. Nonetheless, the reduction was not as significant as could have been achieved if the prosecuting authority, the FCA, had not needed to obtain certain information by compulsion.
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