In a move reminiscent of the 2009 corporate self-reporting guidelines for overseas corruption, on 24 April 2025, the SFO issued new Guidance stating that “if a corporate self-reports promptly…and cooperates fully, we will invite it to negotiate a DPA rather than prosecute, unless exceptional circumstances apply”.
The 2025 Guidance is not quite as favourable as the civil settlement offered in 2009, but any clarity around the SFO expectations in relation to the DPA process is welcome. Having advised numerous companies on decisions to self-report issues discovered within their businesses, we can genuinely say that this is one of the most difficult decisions any board must make.
But does the publication of the Guidance provide any greater comfort? Will it lead to more self-reporting, as the SFO no doubt hopes? Or will companies sit tight and bank on the fact that it may be unlikely that the SFO will ever become independently aware of any misconduct, and if it does, it may not be able to bring home a successful prosecution?
When is a report of misconduct to the SFO not a “self-report”?
The Guidance sets out that there is an expectation that where “there is direct evidence of corporate offending, we expect a corporate to self-report soon after learning of that evidence”. [emphasis added]
In many instances, particularly in the sphere of bribery and corruption, such “direct evidence” will be difficult for a company – without the SFO’s powers of production – to obtain. It is therefore likely that in most cases, an initial internal investigation will be appropriate prior to any decision to self-report.
But if “direct evidence” is unlikely to be forthcoming, when will a report be appropriate? What will be key for companies wishing to gain credit for self-reporting is the timing and likelihood of the SFO becoming independently aware of any evidence or suspicions of misconduct by alternative means. Corporates should remember that the SFO has many sources of information, including overlapping investigations, whistle-blowers, external auditors, competitors, journalists, litigation, and Suspicious Activity Reports made by banks and professional advisors. The more noise, and the longer the delay from initial discovery, the more likely it will be that the SFO will become aware by alternative means, and any credit available from SFO will be lost.
The Guidance also makes it clear that reporting to another authority in the UK (or overseas) will not be considered a “self-report” to the SFO – so careful consideration should be given to the need to concurrently report issues, where applicable.
Does a self-report end with contacting the SFO?
Companies should be cognisant of the fact that an initial report to the SFO is only the very first step in what is likely to be a long process of cooperative investigation, reporting and remediation efforts. Notwithstanding this, although a self-report is undoubtedly disruptive and costly, it does provide a greater degree of control over timing and business continuity than the alternative.
To be seen as eligible for a DPA, the company must continue to provide “genuine” cooperation” with the SFO. Such cooperation must go “above and beyond what the law requires”. This commonly includes the company conducting its own independent, lawyer-led investigation in regular consultation with SFO.
No self-report, no DPA? Not so.
Despite the ominous words of Nick Emphgrave in the accompanying press release that:
“If you have knowledge of wrongdoing, the gamble of keeping this to yourself has never been riskier”,
the SFO Guidance confirms that a DPA outcome will remain open to companies that have not self-reported, provided they demonstrate “exemplary cooperation”.
What amounts to exemplary cooperation is evidently greater than “genuine cooperation”, but this is not explicitly spelled out in the Guidance. From experience, this is really just a question of degree – the fundamental expectation of “going above and beyond” the law remains the same.
Some of the key points in the Guidance include:
- A waiver of genuine LPP material to expedite the investigation by SFO
- Proactively preserving all digital and hard copy evidence
- Identifying overseas documents within the company’s control
- Identifying relevant material in the hands of third parties
- Providing translations of foreign language documents
- Presenting factual reports of criminality and fully identifying all participants
- Engaging with the SFO regarding any corporate internal investigation, including:
- agreeing on scope;
- prior consultation on investigative steps (including interviews)
- timely disclosure of findings;
- disclosing interview accounts; and
- assisting with access to employees for SFO interviews – including the provision of independent legal advice.
New timelines
The SFO has been seeking to improve its timescales for resolving cases. The Guidance sets out timelines for key actions in any self-report case. These are to be welcomed, as too often such matters become unnecessarily lengthy. The SFO will now:
- Contact a self-reporting company within 48 business hours of initial contact / self-report.
- Provide a decision on whether it will open an investigation within six months of a self-report.
- Conclude its investigation within a prompt time frame.
- Conclude DPA negotiations within six months of sending a DPA invitation.
However, as the longest phase in any self-report will be the investigation itself, the Guidance does little to offer an end to sprawling multi-year affairs. What is considered “prompt” will inevitably depend on the relevant context.
Good news?
While the Guidance is undeniably welcome, especially when contrasted with the stark “guidance” issued by the SFO under David Green, which comprised solely of a statement setting out the Full Code Test[1] for prosecution under the Code for Crown Prosecutors, it must also be remembered that it is not binding. There is little in the way of concrete assurance and there are no consequences for the SFO missing its own deadlines or changing its views on cooperative conduct in different scenarios.
Coming hot on the heels of the announcement of the European Taskforce on Corruption, what is does highlight is that the SFO is alive and kicking and, in the words of Nick Empgrave:
“…determined to lead the fight against serious and complex fraud, bribery and corruption at home and side-by-side with our international partners”
Corporate Britian would do well to sit up and take notice.
Published: 29.04.2025
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[1] “If on the evidence there is a realistic prospect of conviction, the SFO will prosecute if it is in the public interest to do so