Key Takeaways From the SFO’s New Corporate Guidance
The updated guidance puts a heavy emphasis on self-reporting and clarifies how corporates under investigation can earn cooperation credit from UK prosecutors.
By Pamela Reddy, Clare Nida, Annie Birch, and Matthew Unsworth
On 24 April 2025, the UK Serious Fraud Office (SFO) published a long-awaited update to its Guidance on Corporate Co-operation and Enforcement (the Guidance). The Guidance outlines the agency’s key considerations when deciding whether to prosecute a corporate or invite it to negotiate a deferred prosecution agreement (DPA).
The Guidance aims to incentivise corporates to self-report wrongdoing by offering an automatic invitation to negotiate a DPA (except in “exceptional circumstances”) if the corporate fully cooperates with any subsequent investigation.
We set out our key takeaways below.
Presumption of an Invitation to Negotiate a DPA Following a Self-Report
The Guidance states that corporates will automatically be invited to negotiate a DPA if they self-report “promptly” and “fully cooperate” with the SFO’s investigation — unless exceptional circumstances apply. Organisations will now be able to self-report directly to the SFO’s Intelligence Division via a secure reporting portal. This development marks a clear change in emphasis from the previous 2019 guidance and the DPA Code of Practice.
A corporate could still obtain a DPA even if it does not self-report — but “exemplary cooperation” will be required. Although not expressly defined in the Guidance, exemplary cooperation is assumed to be a higher standard than the “full cooperation” expected of self-reporting corporates.
Source: Latham & Watkins
Tight Timescales for Self-Report Investigations
The Guidance states that the SFO will seek to progress its enquiries at pace following a self-report. It will aim to:
- contact an organisation within 48 hours of a self-report;
- decide whether to open an investigation within six months of a self-report;
- conclude its investigations within a “reasonably prompt” timeframe; and
- conclude DPA negotiations within six months of sending an invite.
These timelines are ambitious, even if material provided by the corporate is limited to “key material” only, and will require significant resources from the SFO. However, with Nick Ephgrave as director, the SFO has conducted some of its fastest-ever investigations resulting in charging decisions. The agency recently charged five individuals in relation to a collapsed law firm following an investigation lasting only 15 months.
More Guidance on Cooperative and Uncooperative Conduct
The Guidance includes a non-exhaustive list of cooperative steps corporates can take when under investigation. Many of these steps are repeated from the previous guidance — including proactively preserving relevant digital and physical documents, providing financial information regarding the benefit or harm that resulted from the wrongdoing, and assisting with witness interviews.
Additional steps that the SFO recommends in the Guidance include:
- actively coordinating with the SFO in respect of any internal investigation — including early engagement as to the parameters of the investigation, advance notification of the steps that will be taken, timely updates as the investigation progresses, and provision of interview notes to the SFO (waiving privilege if applicable); and
- providing details of the compliance programme and procedures that were in place at the time of the wrongdoing and how the corporate has remediated any deficiencies.
Equally, the Guidance includes similar examples of uncooperative behaviour as the previous iteration, including tactically delaying providing information, overloading an investigation with unnecessarily large amounts of material, and obfuscating the involvement of individuals. The SFO has also added the following to the list of uncooperative behaviour:
- Forum shopping by “unreasonably reporting offending to another jurisdiction for strategic reasons”
- Seeking to “exploit differences between international law enforcement agencies or legal systems”, such as taking advantage of blocking statutes
Some Ambiguity Remains
While the Guidance provides welcome clarity in relation to the SFO’s expectations for corporate cooperation, there are some areas of ambiguity:
- What counts as “prompt” self-reporting? The Guidance acknowledges that corporates may wish to conduct preliminary investigations to understand the nature and extent of any wrongdoing. However, Nick Ephgrave has said that corporates should self-report once there is a “reasonable suspicion” of wrongdoing.
- What are exceptional circumstances? As noted above, corporates will automatically be invited to negotiate a DPA if they self-report promptly and fully cooperate with the SFO’s investigation — unless “exceptional circumstances” apply. However, this term is not defined or elaborated on in the Guidance.
- Is there an expectation to waive privilege? The SFO maintains an inconsistent position on privilege in the Guidance. It states that a corporate will not be penalised for maintaining a valid claim of LPP but also notes that a waiver is considered a “significant cooperative act”.
Looking Ahead
There is no doubt that the SFO is trying to drive corporates towards self-reporting. But with no cast-iron guarantee of a DPA following a self-report, and the door left open to obtaining one without self-reporting, the Guidance may not tip the scales enough. Equally, the attractiveness of a DPA depends on the effectiveness of SFO prosecutions and their deterrence value. Recently announced charges against an insurance firm for failure to prevent bribery in Ecuador will be keenly monitored to weigh the risk of corporate prosecution.
This post was prepared with the assistance of Maya Patel in the London office of Latham & Watkins.
