Key takeaways
Effective compliance programmes are essential
Proactive compliance influences prosecution, defence, and sentencing.
Timing matters
Compliance programme effectiveness is assessed at offence, reporting, and resolution.
Regular reviews recommended
Reviewing effectiveness of compliance programmes increases chances of protection.
The Serious Fraud Office (SFO) recently published updated guidance on how it evaluates corporate compliance programmes when taking enforcement action in England, Wales and Northern Ireland.
The guidance outlines the six scenarios in which the SFO will assess or evaluate an organisation's compliance programme:
Charging decisions: to determine whether is in the public interest to prosecute an organisation for a failure to prevent bribery or fraud offence, the SFO will evaluate the effectiveness and proactive nature of the compliance programme, both at the time the offence was committed as well as at the time of charge.
Eligibility for deferred prosecution: to consider an organisation’s eligibility for the offer of a deferred prosecution agreement (DPA), the SFO will evaluate the effectiveness and the proactive nature approach of the relevant compliance programme, at the time of the offending, the time of reporting and at the time of entering into the DPA.
DPA terms / monitorship: to determine whether to include compliance terms and/or a monitorship as part of any DPA offered, the SFO will evaluate what changes / improvements to the compliance programme are fair, reasonable and proportionate and would result in a robust compliance programme.
Defence to failure to prevent bribery offence: to determine whether an organisation has a defence of “adequate procedures” to a charge of a failure to prevent bribery offence, the SFO will consider whether, at the time of the bribe, the organisation had adequate procedures designed to prevent the bribery which comply with the six principles outlined in the Bribery Act Guidance.
Defence to failure to prevent fraud offence: to determine whether an organisation has a defence of “reasonable procedures” to a charge of a failure to prevent fraud offence, the SFO will consider whether the organisation had adequate procedures designed to prevent the fraud which comply with the six principles outlined in the Failure to Prevent Fraud Guidance.
Sentencing considerations: The existence and nature of an organisation’s compliance programme is a relevant factor for sentencing considerations.
The updated SFO guidance underscores the critical role of effective, proactive compliance programmes in enforcement decisions. Organisations must demonstrate robust procedures as these will influence charging decisions, DPA eligibility, defence availability, and sentencing outcomes.
