Partner Ian Hargreaves discusses SFO corporate guidance in The Law Society Gazette

Partner Ian Hargreaves explores the Serious Fraud Office’s new guidance for corporates about self-reporting, co-operation and Deferred Prosecution Agreements, and discusses the key considerations for both businesses and practitioners.

Ian’s article was published in The Law Society Gazette, 6 June 2025.

Nick Ephgrave, Director of the UK’s Serious Fraud Office (SFO), is a man in a hurry and his frustration with the difficulties faced by the agency in prosecuting white collar crime is plain to see.

Since taking the reigns, Ephgrave’s ‘to do list’ has included; adopting new technologies, accelerating the pace of investigations, implementing improvements to disclosure practices which have been much criticised and fatal in some prosecutions in the past, and pushing for the introduction of financial incentives for whistleblowers beyond the limited schemes we have already seen introduced by the CMA and HMRC.

While the U.S. Department of Justice (DOJ) seems to be in reverse gear following the re-election of Donald Trump, the SFO has been keen to promote its new anti-corruption taskforce alongside prosecutors in France and Switzerland, and three international bribery investigations in the last six months. The SFO recognises that it needs to improve its perceived credibility and become a more effective law enforcement agency, especially in light of past failures, UK Government pressure and the opportunities offered by parallel recent reforms to the corporate criminal liability regime, including the expanded identification doctrine and the new failure to prevent fraud offence.

The new SFO Corporate Guidance will, the SFO hopes, assist all of the above in increasing self-reports and settlements.

The Guidance offers the ’carrot’ for the ‘’first time’’ of an expectation to be invited “to negotiate” a DPA rather than face prosecution (unless exceptional circumstances apply) where the corporate suspects wrongdoing and co-operates fully with investigators. Note – it is an invitation to negotiate which, if (and this may be a big ‘if’) ultimately results in an agreed DPA, would then require – some would argue – the mere formality of being ‘rubber-stamped’ by the Court.

The Guidance is carefully drafted. No guarantees are given. Hints that the ‘stick’ of significant punishment will fall on those who do not self-report and/or cooperate are woven between several helpful and pragmatic ‘’considerations’’. For example, the Guidance accepts a corporate will likely want to carry out its own inquiries before reporting to the SFO and that it will not prohibit corporates from conducting their own interviews without reference to and the offering up of those witnesses to be interviewed first by the SFO. From our experience, corporates have become much better at conducting initial interviews, potentially as a result of the improvements made by internal compliance teams following the introduction of the UK Bribery Act and subsequent, similar legislation. The SFO now seems to accept this and are more prepared not to insist on having the first opportunity to interview witnesses. This should give corporates some comfort that any initial engagement with the ‘suspects’ and witnesses will not prejudice their ability ‘’to negotiate’’ with the SFO.

Further, it reiterates what was believed to be the case from previous guidance that the SFO accepts that the principle of legal professional privilege can be preserved – although the clear message is that it would be beneficial for privilege to be waived.

The overarching aim is clearly to incentivise early self-reporting of corporate misconduct. However, although there is greater clarity, this Guidance still leaves various grey areas which will trouble in-house lawyers and external counsel.

One example is what constitutes “prompt” reporting. The SFO notes that organisations should report “soon after learning” of direct evidence of misconduct, and before an internal investigation is “fully complete.” But when is ‘’soon after learning’’ and when does the balance tip in favour of self-reporting to the SFO? When Mr. Ephgrave launched the Guidance, he suggested that corporates should stop their internal investigation and report as soon as they have a “reasonable suspicion” of wrongdoing. Is this when the suspicion becomes “more than merely fanciful” as applies in the world of proceeds of crime and money laundering? As was the case before the Guidance was introduced, advising whether the tipping-point to self-report has been reached will probably be one of the hardest pieces of advice to give.

What the Guidance does not set out are the specific financial and non-financial advantages of a negotiated DPA. Past-performance may be indicative of the approach the SFO may take to DPA negotiations but this does not give the comfort that many directors would desire in assessing the risk of self-reporting or not. Notwithstanding the unpredictability of the Trump-era, the U.S. system remains more transparent about the financial incentives available and draws a sharper distinction between self-reporting and co-operation, than the current SFO regime.

On 12 May 2025, the DOJ unveiled its new Plan for White Collar Crime and Corporate Enforcement. The Plan includes a more clearly defined path to seeking a declination. However, arguably, corporates that do not meet all of the requirements for a declination have more certainty about the form of resolution they will face. Specifically, companies that self-report misconduct in good faith, cooperate, and remediate, but do not meet all of the voluntary self-disclosure requirements (because, for instance, the DOJ was already aware of the misconduct) will generally receive a non-prosecution agreement with a term fewer than three years, no independent compliance monitor, and a penalty reduction of 75% off the low end of the US Sentencing Guidelines fine range. The same is true where aggravating factors preclude a declination, but the company has voluntarily self-disclosed, cooperated, and remediated. There is no similar clarity in the Guidance but this is not particularly surprising considering the English Court, at least on face value, has a greater ability to intervene in any agreement proposed through a DPA.

While some of the SFO’s latest Guidance seems like a re-hash of previous statements and guidance, following a recent reduction in the number of completed DPAs it was important for the agency to do something which might encourage corporates to have faith in self-reporting and potentially entering into a DPA.

Whether the Guidance will provide such a kick-start we have our doubts but the SFO should be credited with the recognition that the Guidance does benefit from greater clarity than previous editions and represents a step in the direction Mr Ephgrave wants to take in improving the efficiency and effectiveness of the SFO in combatting serious corporate crime.