When David Green replaced Richard Alderman as director of the Serious Fraud Office (SFO) in 2012, the agency changed its tone. The new mood music was very much “no more Mr Nice Guy.” But while the SFO has renewed its determination to use the “stick” of investigations and prosecutions, it has not withdrawn the “carrot” of leniency to companies that cooperate.
And that poses the million-dollar question (in some cases, quite literally): how much cooperation is enough to satisfy the SFO? And perhaps more fundamentally: do the benefits of cooperation always outweigh the risks of a prosecution? Should you ever stand your ground and force the SFO to prove its case?
A number of cases shed light on what the SFO and the English courts expect when it comes to cooperation.
Standard Bank, with which the SFO entered the UK’s first Deferred Prosecution Agreement (DPA), was credited for self-reporting at an early stage and then cooperating in full on the investigation. The bank self-reported within a month of staff in its Tanzanian sister company raising concerns internally, before the bank’s external lawyers had started, let alone completed, an internal investigation.
As Sir Brian Leveson recorded in his judgment, in which he confirmed that a DPA with Standard Bank was appropriate in principle: “cooperation includes identifying relevant witnesses, disclosing their accounts and the documents shown to them […] Where practicable it will involve making witnesses available for interview when requested. In this regard, Standard Bank fully cooperated with the SFO from the earliest possible date by, among other things, providing a summary of first accounts of interviewees, facilitating the interviews of current employees, providing timely and complete responses to requests for information and material and providing access to its document review platform.”
In 2016 the SFO secured another DPA, this time with a “small to medium-sized company” (XYZ Limited). XYZ, whose identity has not been made public to avoid prejudicing ongoing proceedings, presumably prosecutions of the people involved, operates for the most part in Asia, apparently in the steel industry.
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