Over the last several weeks, the UK Serious Fraud Office (the “SFO”) and the UK Government have made several announcements that are intended to signal a new corporate enforcement landscape for international anti-corruption cases. These include:
- the issuance of updated guidance setting out the SFO's approach to corporate self-reporting, cooperation, and the use of deferred prosecution agreements (the “New Guidance”) on 24 April 2025;
- the announcement of two new anti-corruption investigations on 17 April 2025 and 30 April 2025, after an extended period in which most new SFO investigations focused on other financial crimes, especially fraud;
- the publication of an annual business plan on 3 April 2025, which emphasised the importance of building intelligence capabilities and cross-border cooperation; and
- a continuing push for the introduction of whistleblowing incentives, resulting in an announcement from the Home Office on 22 April 2025 that the second phase of the Independent Review of Disclosure and Fraud Offences would evaluate whistleblower incentive options.
Together, these developments have been calibrated to send a firm message to corporates: the SFO will encourage self-reporting by offering new advantages for corporates that choose to take that approach, but it will also seek to flex its enforcement muscles and develop tools that could increase the risk of prosecution for corporates that opt against self-reporting.
This alert: (i) summarises the context to the New Guidance; (ii) provides an overview of the key features of the New Guidance; and (iii) explains what the New Guidance could mean in practice for corporates, particularly in light of the other recent developments summarised above.
Context to the New Guidance
The New Guidance adds to a collection of previously issued standards that the SFO must consider when deciding whether to prosecute a corporate or to invite a corporate to enter negotiations regarding a potential deferred prosecution agreement (“DPA”). Collectively, those standards — all of which have been jointly developed and implemented by the SFO and the Crown Prosecution Service (the “CPS”) — encourage corporate self-reporting but provide no guarantee that a self-report will lead to a decision not to prosecute or an invitation to negotiate a DPA.
For example, the Joint Guidance on Corporate Prosecutions makes clear that a “[f]ailure to report wrongdoing within [a] reasonable time of the offending coming to light” and a “[f]ailure to report properly and fully the true extent of the wrongdoing” would be factors weighing in favour of prosecution. In contrast, “[a] genuinely proactive approach adopted by the corporate management team when the offending is brought to their notice, involving self-reporting and remedial actions”, would be a factor weighing against prosecution. However, the SFO and other prosecutors would still have discretionary authority to commence a corporate prosecution following a self-report. Similarly, the Deferred Prosecution Agreements Code of Practice (the “DPA Code”) states that prosecutors may give “[c]onsiderable weight” to “a genuinely proactive approach adopted by [a corporate]’s management team when the offending is brought to their notice, involving within a reasonable time of the offending coming to light reporting [the corporate]’s offending to the prosecutor”, but an invitation to negotiate a DPA is not automatic.
Prior to the introduction of the New Guidance, the SFO also had its own supplemental guidance on corporate self-reporting and guidance on corporate cooperation, which the SFO had developed independently of the CPS. The tone of the prior SFO guidance was similar to the other, jointly developed standards summarised above. In particular, the prior guidance on corporate self-reporting stated that “[s]elf-reporting is no guarantee that a prosecution will not follow” and the prior guidance on corporate cooperation stated that “cooperation — even full, robust cooperation — does not guarantee any particular outcome”.
These standards afforded corporates only limited comfort regarding the potential consequences of a self-report. Specifically, the potential outcome of a self-report in the United Kingdom had been perceived to be less predictable than the potential outcome of a self-report in certain other jurisdictions. The prior SFO guidance was also silent on its handling of self-reports once submitted, including the likely timelines for SFO investigations. That uncertainty was illustrated by previous long-running SFO investigations, including some where DPAs took several years to achieve, and others that were dropped after significant time and expense.
Key Features of the New Guidance
The New Guidance seeks to address concerns about the uncertain benefits of self-reporting and the timeliness of investigations by providing greater precision about how the SFO will approach corporate self-reports in practice.
First, the New Guidance establishes an explicit presumption in favour of an invitation to negotiate a DPA “if a corporate self-reports promptly to the SFO and cooperates fully”, unless “exceptional circumstances” apply. That assurance stops short of a guarantee that a self-report will always yield an invitation to negotiation, and the New Guidance still affords the SFO considerable discretion to decide whether a corporate has self-reported sufficiently “promptly”, whether it has cooperated “fully”, and whether there are “exceptional circumstances” meriting prosecution despite the self-report. As outlined in further detail below, the prompt reporting and full cooperation expectations are set out in the New Guidance, but the New Guidance does not explain what constitutes “exceptional circumstances”. Notably, the New Guidance does not foreclose the possibility of a DPA for corporates that do not self-report misconduct, as the SFO will still “consider inviting to DPA negotiations a corporate that has not self-reported if it has provided exemplary cooperation with [the SFO] investigation”. This is consistent with the SFO’s past practice when negotiating DPAs and confirms that cooperation remains a key factor that will determine prosecutorial decisions.
Second, the New Guidance amends and aims to clarify several aspects of the reporting and cooperation expectations:
- Timing of self-reports: The New Guidance explains that “[w]hat amounts to a reasonable time [in which to make a self-report] will depend on the circumstances”. Although the New Guidance acknowledges that “responsible corporates may consider it necessary to investigate suspicions of suspected offending before a self-report in order to understand the nature and extent of any offending”, it also emphasises that the SFO does “not expect a corporate to fully investigate the matter before self-reporting”. Instead, the SFO would expect a self-report “soon after learning” of any “direct evidence of corporate offending” but would recognise that “further investigation may be necessary” if “the position is less clear-cut”. The reference to “direct evidence” is not defined in the New Guidance, but in remarks accompanying the publication of the New Guidance, the SFO Director made clear his view that “direct evidence” does not equate to actual knowledge of corporate offending: “As soon as you have reasonable suspicion — it doesn’t have to be ‘beyond reasonable doubt’, doesn’t have to be ‘on the balance of probabilities’, just reasonable suspicion you’ve got some offending going on — that’s the point at which you stop, that’s the point at which you talk to us.”
- Relationship between different self-reporting standards: The New Guidance confirms that a self-report to any UK or non-UK agency other than the SFO, including a suspicious activity report to the UK National Crime Agency, will not qualify as a self-report to the SFO for purposes of the New Guidance, unless the SFO is also notified “simultaneously or immediately thereafter”. Given that the threshold for suspicious activity reporting to the NCA is similar to the standard referenced in the SFO Director’s recent remarks — i.e., a “reasonable suspicion” — corporates considering submitting such a report may have to consider whether to submit a parallel self-report to the SFO to secure self-reporting credit, even before they have the “direct evidence of corporate offending” that is referred to in the New Guidance.
- Content of self-reports: The New Guidance explains that corporate self-reports should be made directly to the SFO via a secure reporting form, and it lists the information and other material that should be included in and excluded from a report. For example, although the SFO would expect a self-report to include information about “the whereabouts of key material and any risks associated with the destruction of key evidence or the dissipation of relevant assets”, corporates are warned not to provide digital material until the SFO has agreed on the correct format for such material.
- Cooperation expectations: The New Guidance sets out a non-exhaustive list of cooperative conduct and explains that corporates taking all of those cooperative measures are likely to be assessed to be providing exemplary cooperation. The list mirrors, in some respects, the provisions relating to cooperation in the DPA Code, but it also expands on that existing guidance to include further context on the issues summarised below.
- Internal investigations: The New Guidance reiterates the importance of coordination with the SFO in connection with any internal investigation, including early engagement on the parameters of the investigation, prior notice of investigative steps (especially interviews), and timely updates on and sharing of key factual findings. With regard to interviews, in particular, the New Guidance sets out the SFO’s expectation that self-reporting corporates should refrain from interviewing employees as part of internal investigations, if requested by the SFO. This reflects a long-standing preference of the SFO to have access to first accounts that can be deployed at trial, uninfluenced by prior investigative steps. In practice, we expect that the SFO will adopt a case-by-case approach when deciding whether to permit self-reporting corporates to conduct employee interviews, and may seek to impose conditions before granting permission. These types of requests from the SFO may present practical challenges for corporates seeking to undertake their own investigatory and remedial steps, such as chilling cooperation from employees, causing delays that could conflict with a corporate’s need to ascertain relevant facts to implement timely responsive actions (including addressing potential reporting obligations to other government agencies in the UK or abroad), and creating potential privilege waiver issues in UK or international proceedings.
- Legally privileged material: The New Guidance provides assurance that a corporate that maintains a valid claim of legal professional privilege over relevant material “will not be penalised for doing so”, even though the SFO continues to “consider a waiver of [legal professional privilege] to be a significant cooperative act” and would expect to receive “non-privileged records of interviews” created following any internal investigation. The SFO’s expectations with respect to privilege may present particularly significant challenges in cross-border investigations, as differences in the scope of privilege in the UK and other jurisdictions could lead to situations in which the SFO expects disclosure of materials that it does not view as privileged but that are considered privileged in other jurisdictions. This may require corporates to weigh the benefits of meeting the SFO’s cooperation expectations against the risks of effectuating a waiver of privilege in other jurisdictions.
Finally, the New Guidance explains, for the first time, the steps that the SFO will undertake in response to a self-report and the timing targets for those steps. In particular, SFO intelligence teams will seek to establish contact with a corporate within 48 business hours of a self-report, and to provide regular updates to corporates. It also notes that the SFO ordinarily will decide whether or not to open an investigation within six months and will seek to conclude any investigation within a “reasonably prompt” timeframe. Unsurprisingly, however, the New Guidance cautions that “[t]he time required will be impacted by the level of proactive cooperation [the SFO] receive[s] from the corporate as well as other factors such as the existence of relevant material held in other jurisdictions.” Last, the New Guidance states that the SFO will seek to conclude negotiations within six months of sending an invitation to pursue a DPA.
Practical Consequences of the New Guidance
Whether or not the New Guidance ultimately succeeds in encouraging more self-reporting likely will turn on the SFO’s success in bringing cases against corporates that do not self-report or cooperate, as well as the attractiveness of outcomes for corporates that do self-report and cooperate.
The SFO clearly is eager to create the impression that corporates that choose not to self-report will face greater peril. As the SFO Director Nick Ephgrave put it in the press release accompanying the New Guidance: “If you have knowledge of wrongdoing, the gamble of keeping this to yourself has never been riskier.” However, corporates and practitioners may be skeptical of this claim based on the SFO’s track record in recent years. In particular, several long-running SFO investigations have been closed without charges or DPAs, and there have been well-publicised failures in enforcement actions that the SFO did choose to pursue.
Corporates also will need to see sufficiently enticing advantages from self-reporting in practice. Notably, the guidance’s primary assurance is that a corporate that self-reports and cooperates will be invited to negotiate a DPA — not that a DPA necessarily will be agreed, or that it would be on terms that a potential defendant would view favourably. Moreover, even under the New Guidance, a failure to self-report will not be a complete barrier to a DPA if a corporate demonstrates “exemplary cooperation” with the SFO once an investigation is active.
Although whistleblower incentives and enhanced intelligence capabilities could potentially result in new investigations and increase the risk to corporates that opt not to self-report, neither measure is likely to yield immediate results. Indeed, even if the Government ultimately gets behind the SFO’s request for whistleblower incentives, they are unlikely to be introduced and implemented for several years.
Accordingly, corporate decisions about whether to self-report in the UK will continue to require careful analysis of the potential risks and rewards, taking into account the specific legal, factual and jurisdictional context to each matter. Decisions about whether, when, and to which enforcement authorities to make voluntary disclosures will continue to be complex in cross-border matters — particularly in the context of the rapidly shifting enforcement landscape in the United States and elsewhere. And corporates that are considering a self-report need to be prepared for ongoing cooperation obligations, potentially over several years, to achieve a negotiated resolution in the UK.
If you have any questions concerning the material discussed in this client alert, please contact the members of our anti-corruption practice in London.
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