Finally, we have the Serious Fraud Office’s (SFO) Corporate Co-operation Guidance. SFO director Lisa Osofsky has made it clear she’s a firm advocate of co-operation so this guidance was always going to be significant. While welcome, asserts Aziz Rahman, it runs to just five pages, seems to offer little valuable advice and comes dangerously close to raising more questions than it actually answers.
Five pages of guidance is obviously better than nothing, but this feels like a missed opportunity. To be fair, Osofsky has gone further with this document than her predecessors, but arguably not far enough. While there’s clearly no one-size-fits-all approach to SFO cases, there are aspects of this guidance that are vague, puzzling and/or give cause for concern.
There’s the SFO’s assertion that, during an investigation, if an organisation claims privilege it will be expected to provide certification by independent counsel that the material in question is privileged. This has never been mentioned before. You have to wonder why the SFO thinks this is necessary, bearing in mind the matter will already have been assessed by the lawyers working for the company under investigation.
If co-operation is supposed to be a two-way street then this is hardly an indicator of the SFO’s willingness to play its part. This stipulation can only mean that we have another layer added to investigations that need no more complications.
Which begs the question: ‘Why is the SFO insisting on this?’ It’s hard not to view this as a face-saving exercise by the SFO in the wake of its legal defeat over privilege stemming from its investigation of mining group ENRC.
Industry knowledge, context and common practices
The guidance also talks of those under investigation providing what the SFO calls information on “industry knowledge, context and common practices’’ and on “other actors in the relevant market’’. This could be a laudable attempt by the SFO to learn more about the situation that prompted the investigation and give those under investigation a chance to voice any mitigating circumstances.
Yet the idea of one actor in the market being given the chance to – to use a phrase from Osofsky’s native US – “rat out’’ another or, even worse, mount a campaign of unsubstantiated allegations against them is troubling. It’s just one area of the guidance where more explanation is arguably necessary.
The SFO’s guidance is well-intentioned. It may even help some who come under investigation from the organisation, but reading it gives at least as much cause for concern as concrete advice.
Aziz Rahman is Senior Partner and Head of the Corporate Crime Group at Rahman Ravelli Solicitors