SFO sets out route for businesses to avoid prosecution

TLT picks out the key points you shouldn’t miss...

What’s this about?

On 24 April 2025, the Serious Fraud Office (SFO) published guidance for corporates regarding self-reporting, co-operation and Deferred Prosecution Agreements (DPAs) in relation to corporate criminal offending. The guidance outlines the SFO’s expectations for co-operation and the benefits of early engagement. Crucially, the guidance confirms that if a corporate self-reports promptly and co-operates fully the SFO will invite it to negotiate a DPA (unless exceptional circumstances apply).

Our Head of Economic Crime Compliance, Ben Cooper says...

“The SFO guidance demonstrates that the SFO is keen to actively encourage and reward transparency and co-operation. Firms that act proactively and self-report to the SFO will be invited to negotiate DPAs.”

The points not to miss...

The guidance will be relevant to corporate criminal offending: Firms will need to consider this guidance particularly in connection with (i) the failure to prevent fraud offence coming into force on 1 September 2025, and (ii) liability for economic crimes committed by senior managers. The guidance will also be relevant to new proposals under the Crime and Policing Bill which is seeking to expand senior manager liability to all criminal offences.

The guidance confirms that the decision to self-report is a mark of a responsible organisation: The guidance makes it clear that the SFO values self-reporting highly. Additionally, if a corporate fails to self-report this may be seen as a public interest factor which would support prosecution. However, the SFO guidance also confirms that the SFO understands that firms may need to investigate suspicions of suspected offending before self-reporting.

The guidance provides details of how corporates should self-report: Self-reports should be made directly to the SFO’s Intelligence Division initially via the secure reporting form. The form should identify (i) all relevant known facts and evidence regarding the suspected offence(s), (ii) the individuals involved, and (iii) the relevant jurisdictions. Submitting a Suspicious Activity Report is not considered a self-report to the SFO.

The guidance sets out the SFO’s response timelines: Following a self-report, the Intelligence Division will seek to establish contact within 48 business hours and will provide regular updates. A decision whether or not to open an investigation will usually be taken within 6 months. The SFO will aim to conclude DPA negotiations within 6 months of sending an invitation.

The guidance defines what is meant by co-operation: The guidance sets out that genuine co-operation will be assistance that goes beyond firms’ legal obligations. This is particularly relevant as only genuinely co-operative corporates will be invited to engage in DPA negotiations. The guidance confirms that a prompt self-report is a strong factor indicating co-operation, however, a self-reporting corporate must go on to provide genuine co-operation to be eligible to be invited to negotiate a DPA. The guidance also flags that a corporate that does not self-report can later provide exemplary co-operation to become eligible to be invited to negotiate a DPA.

The guidance sets out examples of co-operative behaviour: The following examples are a non-exhaustive list of conduct which will likely be assessed as providing exemplary co-operation:

• Proactively and promptly preserving all digital and hard copy materials likely to be relevant an investigation.
• Collecting and identifying to the SFO documents and information likely to be relevant to the investigation. This includes but is not limited to:
• Providing a list of relevant document custodians and the location of material (whether hardcopy or digital).
• Identifying and/or producing relevant overseas documents within their control
• Identifying potentially relevant third-party material.
• Providing translations of relevant foreign language documents.

• Presenting the facts on the suspected criminal conduct, including identifying all persons involved, both inside and outside of the organisation.
• If the corporate undertakes an internal investigation:
  
  
  • Early engagement with the SFO as to the parameters of the investigation.
  • Informing the SFO in advance of proposed steps on any ongoing investigation and not taking any step which might prejudice the SFO’s investigation. This is particularly relevant to internal interviews.
  • Providing timely updates on any ongoing investigation including any key findings.
  • Providing the facts gathered during that investigation.
  • Providing non-privileged records of interviews. If the interview records are subject to legal professional privilege, a voluntary waiver of privilege over such records will weigh strongly in favour of co-operation.
  • Refraining from interviewing employees at the SFO’s request.
  • Notifying the SFO of any other regulator’s, law enforcement’s or prosecutor’s involvement or interest.

• Informing the SFO of any previous relevant corporate criminal conduct and how it was resolved.
• Providing information on any disciplinary action taken and changes to personnel made as a result of the offending.
• Providing financial information regarding the benefit and/or harm the offending has caused.
• Presenting a thorough analysis of the corporate’s compliance programme and procedures in place at the time of offending and how the corporate has remediated, or plans to remediate, any ongoing deficiencies.
• Assisting the SFO with provision of access to employees for the purposes of facilitating any interviews and ensuring, where appropriate, independent legal advice is made available to employees.
  

At a glance...

Authors: Ben Cooper and Meghan Millward

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at May 2025. Specific advice should be sought for specific cases. For more information see our terms & conditions.