UK Critical Fraud Workplace Points New Self-Reporting and Company Cooperation Steerage

by Lloyd Firth and Frederick Saugman

Left to proper: Lloyd Firth and Frederick Saugman (images courtesy of Wilmer Cutler Pickering Hale and Dorr LLP)

On 24 April 2025, the UK Critical Fraud Workplace (SFO) issued new steerage to encourage corporations to self-report suspected company wrongdoing. The steerage states that self-reporting, mixed with full cooperation with the SFO’s investigation will, absent distinctive circumstances, result in the SFO inviting the corporate to start Deferred Prosecution Settlement (DPA) negotiations.[1] Whereas the steerage is a welcome recognition that corporations crave certainty of consequence of their dealings with the SFO and an indication of the company’s elevated pragmatism, in observe it’s unlikely to maneuver the needle for corporations on discover of suspected wrongdoing going through the essential strategic resolution of whether or not and when to self-report.

The earlier SFO steerage acknowledged that self-reporting was a “related consideration” in figuring out whether or not a prosecution is within the public curiosity”.[2] The 2 key paragraphs of the brand new steerage state:

Every case will flip by itself details, however an element which all the time weighs closely in favour of a DPA over prosecution is a immediate self-report. If a company self-reports promptly to the SFO and co-operates totally we’ll invite it to barter a DPA relatively than prosecute except distinctive circumstances apply. We are going to think about inviting to DPA negotiations a company that has not self-reported if it has offered exemplary co-operation with our investigation.

Talking on the day the brand new steerage was launched, SFO Director Nick Ephgrave mentioned this was “pretty much as good as a forged iron assure […] no ifs, buts or maybes”.  At first look, the brand new steerage represents a step-change which ought to incentivise self-reporting to keep away from the chance of prosecution however on nearer assessment it falls in need of any form of assure.  The specific conditionality of the purported assure, underlined beneath, permits the SFO to retain important prosecutorial discretion and bakes in unhelpful uncertainty for corporations and their advisers.

Every case will flip by itself details, however an element which all the time weighs closely in favour of a DPA over prosecution is a immediate self-report. If a company self-reports promptly to the SFO and co-operates totally we’ll invite it to barter a DPA relatively than prosecute except distinctive circumstances apply.

The brand new steerage makes clear that self-reporting with out full co-operation won’t be ample to immediate DPA negotiations. Corporations ought to see self-reporting as a side of co-operation, relatively than a separate class.  Because the court docket famous in Airbus,[3] “there isn’t any mandatory vivid line between self-reporting and co-operation”. Neither is self-reporting a mandatory situation for a “totally co-operative” stance; the brand new steerage states that the SFO will “think about inviting to DPA negotiations a company that has not self-reported if it has offered exemplary co-operation.” That is according to the SFO’s strategy underneath the previous steerage, as seen within the Airbus and Rolls-Royce DPAs.[4] Self-reporting is a contributing issue within the evaluation of co-operation, however it’s neither mandatory nor ample in isolation.

The examples of co-operative conduct listed within the new steerage (e.g., preserving proof, figuring out and disclosing related materials, presenting the details to the SFO, figuring out implicated people, participating with the SFO prematurely of taking materials steps in the course of the investigation, waiving privilege over witness interview memoranda) don’t differ substantively from the examples set out in current SFO company steerage,[5] and the SFO has not offered any indication of what would possibly quantity to the form of “distinctive circumstances” that will stop a totally co-operative firm that self-reported from being invited into DPA negotiations.

The brand new steerage helpfully identifies 5 examples of what the SFO considers to be uncooperative conduct:

• Offering unnecessarily massive quantities of fabric to attempt to overload the SFO’s investigation.
• Tactically delaying offering data or materials.
• Concealing particular person involvement or the total extent of the wrongdoing.
• Looking for to use variations between worldwide legislation enforcement companies and totally different authorized techniques.
• An organization discussion board buying by unreasonably reporting offending to a different jurisdiction for strategic causes.

The brand new steerage additionally imposes new procedural timelines on the self-reporting course of.  The SFO will search to:

• Contact a self-reporting firm inside 48 enterprise hours of a self-report.
• Repeatedly replace the corporate all through the method.
• Resolve whether or not to open an investigation inside six months of a self-report.
• Conclude their investigation inside a fairly immediate timeframe.
• Conclude DPA negotiations inside six months of sending an invitation.

The brand new SFO steerage have to be learn in mild of the related home and international legislative and enforcement context by which the company finds itself.  Domestically, the Financial Crime and Company Transparency Act (ECCTA) 2023 presents probably the most radical overhaul of company felony legal responsibility within the UK in a technology, making it considerably extra easy for corporations to be criminally investigated and prosecuted. 

The brand new company offence of failure to forestall fraud will come into power on 1 September 2025. The brand new offence holds massive organisations criminally answerable for fraud dedicated by related individuals who present companies for or on behalf of the organisation with the intention of benefiting it. It’s a defence for the organisation to ascertain that it had affordable procedures in place to forestall the fraud.

ECCTA amends the present ‘identification doctrine’—the primary means by which felony legal responsibility has been attributed to company entities in England and Wales—to permit for the actions of ‘senior managers’, appearing throughout the precise or obvious scope of their authority, to repair the entity with legal responsibility with respect to a complete checklist of financial crimes, together with fraud, bribery, cash laundering, sanctions, dishonest the general public income and conspiracy to defraud offences.[6]

ECCTA additionally expands the SFO’s obligatory data request and interview powers past worldwide bribery and corruption, giving the SFO the ability to compel people and corporations to offer data on the pre-investigation stage in all SFO circumstances. It will enable the SFO to progress investigations extra rapidly and take earlier prosecution choices.[7]

The SFO Director can also be pushing for the introduction of US-style monetary rewards for whistleblowers. Whistleblowers within the UK presently face an unsure panorama the place the worry of repercussions usually outweighs any incentive past doing the “proper factor”. Mr. Ephgrave believes that providing a monetary incentive, alongside extra formal protections towards reprisals, will persuade extra individuals to return ahead with proof that may assist the SFO uncover unknown misconduct and supply a “smoking gun” that may result in a profitable prosecution extra readily than current intelligence gathering powers.

Globally, the brand new steerage arrives at a time of great enforcement uncertainty.  In February 2025, President Trump issued an Government Order directing Legal professional Common Bondi to conduct a six-month assessment of the rules and insurance policies governing FCPA investigations and enforcement actions, successfully pausing FCPA enforcement. The order got here a couple of days after a memo from Legal professional Common Pamela Bondi instructing the US Division of Justice (DOJ) to redirect its enforcement efforts away from company crimes like FCPA violations and towards the Administration’s priorities: combating unlawful immigration, drug cartels, and allegedly illegal DEI practices.  The latest institution of an anti-corruption prosecutorial taskforce between the SFO, France’s Parquet Nationwide Financier and the Workplace of the Legal professional Common of Switzerland, goes a way in the direction of the European companies signaling that they’re ready to attempt to fill the FCPA enforcement hole.

Recognising the necessity for corporations to have a greater incentive to self-report and elevated certainty when coping with the SFO is a welcome and pragmatic growth by the company.  Nonetheless, corporations on discover of suspected wrongdoing should proceed to grapple with plenty of difficult and competing strategic questions, together with: Are obligatory / regulatory reporting obligations in play? How far ought to an investigation progress earlier than contemplating a self-report? What are the prospects of the SFO discovering out in regards to the concern apart from from the corporate? What management or affect would the corporate retain over the scope and focus of the SFO’s investigation? Which different overseas legislation enforcement companies are conscious of and investigating the problem? How would DPA negotiations be more likely to conclude? What are the relative advantages and disadvantages of a DPA in comparison with an alternate consequence for the corporate? What are the prospects of the SFO efficiently prosecuting the corporate?  What’s the anticipated dimension of any monetary penalty? Is follow-on shareholder litigation in progress or moderately in prospect?  In fact, the brand new steerage provides little new to the self-reporting balancing train.

[1] https://www.gov.uk/authorities/publications/sfo-corporate-guidance/sfo-corporate-guidance.

[2] See: Company Self-Reporting Steerage: https://webarchive.nationalarchives.gov.uk/ukgwa/20241119162228/https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/guidance-for-corporates/corporate-self-reporting/

[3] Director of the Critical Fraud Workplace v Airbus SE (31 January 2020), paragraph 68. Out there at: https://belongings.publishing.service.gov.uk/media/67c05a5bb0bb6528ee866bab/R_v_Airbus_Approved_Judgment.pdf.

[4] Director of the Critical Fraud Workplace v Rolls-Royce PLC & Rolls-Royce Power Programs Inc (17 January 2017). Out there at: https://belongings.publishing.service.gov.uk/media/67c061c4750837d7604dbc67/sfo-v-rolls-royce.pdf.

[5] See: Company Co-operation Steerage: https://webarchive.nationalarchives.gov.uk/ukgwa/20241119161826/https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/guidance-for-corporates/corporate-co-operation-guidance/ and Deferred Prosecution Agreements Code of Follow: https://www.cps.gov.uk/websites/default/information/paperwork/publications/DPA-COP.pdf.

[6] Part 196, ECCTA 2023.

[7] Part 211, ECCTA 2023, amending part 2A Legal Justice Act 1987.

Lloyd Firth is a Accomplice and Frederick Saugman is Counsel at Wilmer Cutler Pickering Hale and Dorr LLP. This publish first appeared on the agency’s weblog.

The views, opinions and positions expressed inside all posts are these of the creator(s) alone and don’t characterize these of the Program on Company Compliance and Enforcement (PCCE) or of the New York College Faculty of Legislation. PCCE makes no representations as to the accuracy, completeness and validity or any statements made on this website and won’t be liable any errors, omissions or representations. The copyright of this content material belongs to the creator(s) and any legal responsibility with reference to infringement of mental property rights stays with the creator(s).

by Lloyd Firth and Frederick Saugman

Left to proper: Lloyd Firth and Frederick Saugman (images courtesy of Wilmer Cutler Pickering Hale and Dorr LLP)

On 24 April 2025, the UK Critical Fraud Workplace (SFO) issued new steerage to encourage corporations to self-report suspected company wrongdoing. The steerage states that self-reporting, mixed with full cooperation with the SFO’s investigation will, absent distinctive circumstances, result in the SFO inviting the corporate to start Deferred Prosecution Settlement (DPA) negotiations.[1] Whereas the steerage is a welcome recognition that corporations crave certainty of consequence of their dealings with the SFO and an indication of the company’s elevated pragmatism, in observe it’s unlikely to maneuver the needle for corporations on discover of suspected wrongdoing going through the essential strategic resolution of whether or not and when to self-report.

The earlier SFO steerage acknowledged that self-reporting was a “related consideration” in figuring out whether or not a prosecution is within the public curiosity”.[2] The 2 key paragraphs of the brand new steerage state:

Every case will flip by itself details, however an element which all the time weighs closely in favour of a DPA over prosecution is a immediate self-report. If a company self-reports promptly to the SFO and co-operates totally we’ll invite it to barter a DPA relatively than prosecute except distinctive circumstances apply. We are going to think about inviting to DPA negotiations a company that has not self-reported if it has offered exemplary co-operation with our investigation.

Talking on the day the brand new steerage was launched, SFO Director Nick Ephgrave mentioned this was “pretty much as good as a forged iron assure […] no ifs, buts or maybes”.  At first look, the brand new steerage represents a step-change which ought to incentivise self-reporting to keep away from the chance of prosecution however on nearer assessment it falls in need of any form of assure.  The specific conditionality of the purported assure, underlined beneath, permits the SFO to retain important prosecutorial discretion and bakes in unhelpful uncertainty for corporations and their advisers.

Every case will flip by itself details, however an element which all the time weighs closely in favour of a DPA over prosecution is a immediate self-report. If a company self-reports promptly to the SFO and co-operates totally we’ll invite it to barter a DPA relatively than prosecute except distinctive circumstances apply.

The brand new steerage makes clear that self-reporting with out full co-operation won’t be ample to immediate DPA negotiations. Corporations ought to see self-reporting as a side of co-operation, relatively than a separate class.  Because the court docket famous in Airbus,[3] “there isn’t any mandatory vivid line between self-reporting and co-operation”. Neither is self-reporting a mandatory situation for a “totally co-operative” stance; the brand new steerage states that the SFO will “think about inviting to DPA negotiations a company that has not self-reported if it has offered exemplary co-operation.” That is according to the SFO’s strategy underneath the previous steerage, as seen within the Airbus and Rolls-Royce DPAs.[4] Self-reporting is a contributing issue within the evaluation of co-operation, however it’s neither mandatory nor ample in isolation.

The examples of co-operative conduct listed within the new steerage (e.g., preserving proof, figuring out and disclosing related materials, presenting the details to the SFO, figuring out implicated people, participating with the SFO prematurely of taking materials steps in the course of the investigation, waiving privilege over witness interview memoranda) don’t differ substantively from the examples set out in current SFO company steerage,[5] and the SFO has not offered any indication of what would possibly quantity to the form of “distinctive circumstances” that will stop a totally co-operative firm that self-reported from being invited into DPA negotiations.

The brand new steerage helpfully identifies 5 examples of what the SFO considers to be uncooperative conduct:

• Offering unnecessarily massive quantities of fabric to attempt to overload the SFO’s investigation.
• Tactically delaying offering data or materials.
• Concealing particular person involvement or the total extent of the wrongdoing.
• Looking for to use variations between worldwide legislation enforcement companies and totally different authorized techniques.
• An organization discussion board buying by unreasonably reporting offending to a different jurisdiction for strategic causes.

The brand new steerage additionally imposes new procedural timelines on the self-reporting course of.  The SFO will search to:

• Contact a self-reporting firm inside 48 enterprise hours of a self-report.
• Repeatedly replace the corporate all through the method.
• Resolve whether or not to open an investigation inside six months of a self-report.
• Conclude their investigation inside a fairly immediate timeframe.
• Conclude DPA negotiations inside six months of sending an invitation.

The brand new SFO steerage have to be learn in mild of the related home and international legislative and enforcement context by which the company finds itself.  Domestically, the Financial Crime and Company Transparency Act (ECCTA) 2023 presents probably the most radical overhaul of company felony legal responsibility within the UK in a technology, making it considerably extra easy for corporations to be criminally investigated and prosecuted. 

The brand new company offence of failure to forestall fraud will come into power on 1 September 2025. The brand new offence holds massive organisations criminally answerable for fraud dedicated by related individuals who present companies for or on behalf of the organisation with the intention of benefiting it. It’s a defence for the organisation to ascertain that it had affordable procedures in place to forestall the fraud.

ECCTA amends the present ‘identification doctrine’—the primary means by which felony legal responsibility has been attributed to company entities in England and Wales—to permit for the actions of ‘senior managers’, appearing throughout the precise or obvious scope of their authority, to repair the entity with legal responsibility with respect to a complete checklist of financial crimes, together with fraud, bribery, cash laundering, sanctions, dishonest the general public income and conspiracy to defraud offences.[6]

ECCTA additionally expands the SFO’s obligatory data request and interview powers past worldwide bribery and corruption, giving the SFO the ability to compel people and corporations to offer data on the pre-investigation stage in all SFO circumstances. It will enable the SFO to progress investigations extra rapidly and take earlier prosecution choices.[7]

The SFO Director can also be pushing for the introduction of US-style monetary rewards for whistleblowers. Whistleblowers within the UK presently face an unsure panorama the place the worry of repercussions usually outweighs any incentive past doing the “proper factor”. Mr. Ephgrave believes that providing a monetary incentive, alongside extra formal protections towards reprisals, will persuade extra individuals to return ahead with proof that may assist the SFO uncover unknown misconduct and supply a “smoking gun” that may result in a profitable prosecution extra readily than current intelligence gathering powers.

Globally, the brand new steerage arrives at a time of great enforcement uncertainty.  In February 2025, President Trump issued an Government Order directing Legal professional Common Bondi to conduct a six-month assessment of the rules and insurance policies governing FCPA investigations and enforcement actions, successfully pausing FCPA enforcement. The order got here a couple of days after a memo from Legal professional Common Pamela Bondi instructing the US Division of Justice (DOJ) to redirect its enforcement efforts away from company crimes like FCPA violations and towards the Administration’s priorities: combating unlawful immigration, drug cartels, and allegedly illegal DEI practices.  The latest institution of an anti-corruption prosecutorial taskforce between the SFO, France’s Parquet Nationwide Financier and the Workplace of the Legal professional Common of Switzerland, goes a way in the direction of the European companies signaling that they’re ready to attempt to fill the FCPA enforcement hole.

Recognising the necessity for corporations to have a greater incentive to self-report and elevated certainty when coping with the SFO is a welcome and pragmatic growth by the company.  Nonetheless, corporations on discover of suspected wrongdoing should proceed to grapple with plenty of difficult and competing strategic questions, together with: Are obligatory / regulatory reporting obligations in play? How far ought to an investigation progress earlier than contemplating a self-report? What are the prospects of the SFO discovering out in regards to the concern apart from from the corporate? What management or affect would the corporate retain over the scope and focus of the SFO’s investigation? Which different overseas legislation enforcement companies are conscious of and investigating the problem? How would DPA negotiations be more likely to conclude? What are the relative advantages and disadvantages of a DPA in comparison with an alternate consequence for the corporate? What are the prospects of the SFO efficiently prosecuting the corporate?  What’s the anticipated dimension of any monetary penalty? Is follow-on shareholder litigation in progress or moderately in prospect?  In fact, the brand new steerage provides little new to the self-reporting balancing train.

[1] https://www.gov.uk/authorities/publications/sfo-corporate-guidance/sfo-corporate-guidance.

[2] See: Company Self-Reporting Steerage: https://webarchive.nationalarchives.gov.uk/ukgwa/20241119162228/https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/guidance-for-corporates/corporate-self-reporting/

[3] Director of the Critical Fraud Workplace v Airbus SE (31 January 2020), paragraph 68. Out there at: https://belongings.publishing.service.gov.uk/media/67c05a5bb0bb6528ee866bab/R_v_Airbus_Approved_Judgment.pdf.

[4] Director of the Critical Fraud Workplace v Rolls-Royce PLC & Rolls-Royce Power Programs Inc (17 January 2017). Out there at: https://belongings.publishing.service.gov.uk/media/67c061c4750837d7604dbc67/sfo-v-rolls-royce.pdf.

[5] See: Company Co-operation Steerage: https://webarchive.nationalarchives.gov.uk/ukgwa/20241119161826/https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/guidance-for-corporates/corporate-co-operation-guidance/ and Deferred Prosecution Agreements Code of Follow: https://www.cps.gov.uk/websites/default/information/paperwork/publications/DPA-COP.pdf.

[6] Part 196, ECCTA 2023.

[7] Part 211, ECCTA 2023, amending part 2A Legal Justice Act 1987.

Lloyd Firth is a Accomplice and Frederick Saugman is Counsel at Wilmer Cutler Pickering Hale and Dorr LLP. This publish first appeared on the agency’s weblog.

The views, opinions and positions expressed inside all posts are these of the creator(s) alone and don’t characterize these of the Program on Company Compliance and Enforcement (PCCE) or of the New York College Faculty of Legislation. PCCE makes no representations as to the accuracy, completeness and validity or any statements made on this website and won’t be liable any errors, omissions or representations. The copyright of this content material belongs to the creator(s) and any legal responsibility with reference to infringement of mental property rights stays with the creator(s).