SFO Guidance and the Public Interest Test

Olliers’ Martha Odysseos considers how co-operation with the SFO can offer corporations a route to deferred prosecution agreements   

The Serious Fraud Office (SFO) has released new guidance (published on the 24th of April 2025) for corporations and businesses on raising concerns about potential fraud or corruption.  

The guidance outlines the SFO’s key considerations under the public interest stage of the Full Code Test for Crown Prosecutors when deciding whether or not to charge a corporation.  

The Public Interest Test 

The public interest test is used to determine whether a prosecution is required in the public interest. Prosecutors identify and determine relevant public interest factors tending for and against prosecution. These factors, along with any others set out in relevant guidance or policy, enable prosecutors to consider an overall assessment of public interest.  

If factors indicate that the overall assessment of public interest is not in favour of prosecution, the SFO has the option to invite corporations to Deferred Prosecution Agreement (DPA) negotiations.  

SFO External Guidance on Corporate Co-Operation and Enforcement in relation to Corporate Criminal Offending 

The SFO’s guidance indicates that a factor which always weighs heavily in favor of a DPA is a prompt self-report.  

 ‘If a corporate self-reports promptly to the SFO and co-operates fully we will invite it to negotiate a DPA rather than prosecute unless exceptional circumstances apply.’ 

The SFO will also invite DPA negotiations if a corporation provides ‘exemplary co-operation’ with an investigation, even if they have not self-reported.  

If a corporation does self-report, the SFO will seek to contact them within 48 business hours of a self-report or initial contact. They will then regularly update them throughout the process and decide whether or not to open an investigation within six months of a self-report.  

The SFO states they will seek to conclude their investigation within a ‘reasonable prompt time frame’ and conclude DPA negotiations within six months of sending an invite.  

Self-Reporting  

The SFO’s guidance states that those who self-report suspected criminal conduct are seen to be ‘a responsible organisation’ and any knowing failure to do so will impact on mitigation.  

If an organisation fails to report suspected conduct within a reasonable time then the public interest factor turns in favour of prosecution.  Reasonable time is considered on a case-by-case basis and the SFO understands that organisations may wish to investigate matters before a self-report to understand the nature and extent of any offending.  

However, the guidance states that they ‘do not expect a corporate to fully investigate the matter before self-reporting.  If there is direct evidence of corporate offending, [they] would expect a corporate to self-report soon after learning of that evidence. If the position is less clear-cut [they] recognise that some further investigation may be necessary’. 

The guidance has detailed information regarding how corporations can self-report and what is expected of them. This includes identifying all relevant known facts and evidence concerning the suspected offences, the individuals involved and the relevant jurisdiction.  

It is made clear that reporting offending through a Suspicious Activity Report to another agency is not considered a self-report unless the offending is also reported to the SFO simultaneously or immediately thereafter.  

Deferred Prosecution Agreement (DPA) 

Only ‘genuinely co-operative’ organisations will be invited to engage in DPA negotiations.  

The SFO state that ‘a self-reporting corporate must go on to provide genuine co-operation to be eligible to negotiate a DPA.’  Those who do not self-report can provide co-operation to become eligible to be invited to negotiate a DPA.  

The guidance provides a non-exhaustive list of co-operative conduct such as the following:  

• Proactively and promptly preserving all digital and hard copy material likely to be relevant to our investigation. 
• Collecting and identifying documents and information likely to be relevant to the investigation. This includes but is not limited to: 
• Providing a list of relevant document custodians and the location of material (whether hardcopy or digital) 
• Identifying and/or producing relevant overseas documents within their control 
• Identifying potentially relevant third-party material 
• Providing translations of relevant foreign language documents 
• Presenting the facts on the suspected criminal conduct, including identifying all persons involved, both inside and outside of the organisation. 

What happens now? 

The guidance has the capability of helping avoid lengthy prosecutions in an already congested court system. If the ‘reasonably prompt time frame’ is stuck to then this could mean a number of investigations being dealt with quicker and more efficiently than currently- whether it does or not remains to be seen. The guidance allows for greater co-operation between corporations, their legal representatives and the SFO.  It is also means that corporations are encouraged to self-report and engage in pre-charge engagement. 

The team at Olliers is known for its proactive approach at the pre-charge stage of investigations following an interview under caution and can assist if you have self-reported an incident.  

Contact our specialist pre-charge engagement lawyers 

If you would like to explore how Olliers can assist you please contact our specialist team by telephone at 0161 834 1515 or via email at info@olliers.com for a confidential discussion.