Serious Fraud Office (SFO) issues co-operation guidance – Louise Hodges comments

8 August 2019

The UK Serious Fraud Office (SFO) released its co-operation guidance on 6 August 2019. Louise Hodges, Head of Kingsley Napley's criminal team, commented on the release of this guidance in GIR, Law360, CRD & The Law Society Gazette.

It will be interesting to see if a company-appointed independent counsel will face more challenge either from the SFO, defence teams or the courts".

The acknowledgement will be a great relief to lawyers and corporates but added that the SFO and courts will continue to have to wrestle with the weight of legal privilege and its own disclosure obligations. The existence of a valid claim to privilege will remain an area of tension between the parties". 

In this guidance, the SFO has provided a full and comprehensive list of what 'good' looks like. The agency has rightly emphasised that this is not 'one size fits all' and some items will be inapplicable or even undesirable in a particular case".

The SFO's statement that it will 'retain full and independent control of its investigation process' sits uncomfortably alongside the long list of indicators of what the company may need to be a cooperator".

The document is silent on key areas including: data protection issues, which have become even more complex with GDPR; employment law issues; and litigation risk, which often goes hand in hand with a criminal investigation and any assistance provided to the SFO may have a knock-on effect in such litigation".

In a further article in Law360 entitled 'SFO guidance marks change of tone on cooperation' released on 19 August 2019 Louise also commented:

 The long list of the indicators the company may need to supply - ranging from providing devices, financial records and identifying potential witnesses and suspects - 'sits uncomfortably' alongside the SFO's statement that it will retain full and independent control of its investigation process.

Any assistance provided to the SFO may have a knock-on effect in such litigation.

An area of contention remains, witness accounts and waiving privilege. The SFO and courts will continue to have to wrestle with that and the SFO's own disclosure obligations to defendants, and the existence of a valid claim to privilege will remain an area of tension between the parties.

In the past, independent counsel have been appointed by the SFO to conduct that exercise. It will be interesting to see if a company appointed independent counsel will face more challenges either from the SFO, defence teams or the courts.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal team.

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