Bribery Act & Proceeds of Crime - Written by Barry & Richard on Wednesday, October 22, 2014 1:54 - 0 Comments
5 top tips on how to handle the SFO from Alun Milford…GC of the SFO
“…do not expect us not to pursue lines of enquiry around how an internal investigation has been conducted, particularly if it cuts across our investigation and appears designed to do so. Do not expect the rewards of co-operation if you offer none. Do not tell others that you are co-operating if you are not.”
stern stuff from Alun Milford , SFO General Counsel, speaking recently at the Global Investigations Summit.
But not unreasonable.
The speech went over a fair amount of old ground (though it’s worth a read if you haven’t already). We’ve distilled it into 5 top tips from the SFO:
- Self Reports must accept the company did wrong, tell the SFO something they don’t already know or would not have found out anyway
- The SFO may trust, but it WILL verify
- Co-operation, co-operation, co-operation
- Do not take steps (for example by churning up the evidence) which the SFO will consider will frustrate their investigation
- Some stuff you really shouldn’t do
We’ve extracted the key piece of the speech and cut in our 5 top tips.
“What factors do we take into account when deciding whether to initiate negotiations with a view to entering into a DPA? My advice would be to go away and read carefully the DPA Code, issued by the Directors of the SFO and of Public Prosecutions. It’s all there. An invitation to embark upon DPA negotiations will depend upon a number of factors, but its hallmark will be co-operation and the free supply of relevant information….
1. [Self Reports must accept the company did wrong, tell the SFO something they don't already know or would have found out anyway]
Of course, a genuine self-report is a helpful thing. Two points arise.
First, in this context, we take reporting to mean telling us something that is not already in the public domain and which you might assume we do not already know. It is not impressive when lawyers ask to see us about an apparently urgent matter in order to tell us something their client has known about for some time, and which we have just learned about from the media. It is still less impressive if, at the end of that meeting, our sum of knowledge has not been added to.
Secondly, the report has to be adverse to the company. That is what is meant by “self-report”. If it is a report into wrong-doing by others – employees of the company – then, co-operative as the company has apparently been, there is no prospect of a DPA because only corporates can be granted DPAs and the corporate has no criminal liability to purge.
2. [The SFO may trust, but it WILL verify (just like in the US)]
However, we will not take a report at face value and we will conduct our own investigation around the allegation. And if, at the end of that process, we conclude that there is, after all, criminal liability by the company, then it will be difficult to have viewed the company as co-operative if the report it submitted to us was aimed at throwing us off the scent.
3. [Co-operation, co-operation, co-operation]
More generally, we are looking for co-operation for the duration of the investigation. We want you or your clients to preserve information and to make it available to us. If external lawyers or accountants have been instructed to conduct an investigation – something which is not necessarily a bad thing – we would want the relevant documents they unearthed drawn to our attention to assist us at the outset of our own enquiries. We would want also to understand how the enquiry was carried out and, crucially, to see the account of any witnesses spoken to by those conducting it.
4. [Do not take steps (for example by churning up the evidence) which the SFO will consider will frustrate their investigation]
If to the company’s knowledge we are conducting an investigation into its affairs, it will also be within that company’s knowledge that we will inevitably wish to interview (and see any earlier statements of) those we might wish to assist in that investigation. In fact, so clear should it be to anyone who is aware of and advising on the investigative process, that they might well ask themselves what conclusion any responsible investigator will arrive at if a corporate investigation seems designed to obstruct – sometimes obviously so – the criminal investigation.
5. [Some stuff you really shouldn't do]
Plainly, how you or your clients decide to engage with the SFO is a matter entirely for you. If you judge that your interests are best served by adopting the Brer Rabbit stance of “lie low and say nothing” that is your choice. You can adopt that stance safe in the knowledge that nothing I have said today is intended to disregard or dilute the right of any company or individual not to self-incriminate. Nor is it intended to ignore or side-step any other right (obviously meaning privilege) to which either is entitled and which is genuinely exercised. But do not expect us not to pursue lines of enquiry around how an internal investigation has been conducted, particularly if it cuts across our investigation and appears designed to do so. Do not expect the rewards of co-operation if you offer none. Do not tell others that you are co-operating if you are not.” [our emphasis]