To work out whether or not the SFO will prosecute a corporate body in a given case you need to read:
- the Full Code Test in the Code for Crown Prosecutors,
- the joint prosecution Guidance on Corporate Prosecutions and, where relevant,
- the Joint Prosecution Guidance of the Director of the SFO and the Director of Public Prosecutions on the Bribery Act 2010.
So that is simple enough!
If on the evidence there is a realistic prospect of conviction, the SFO will prosecute if it is in the public interest to do so. The fact that a corporate body has reported itself will be a relevant consideration to the extent set out in the Guidance on Corporate Prosecutions. That Guidance explains that, for a self-report to be taken into consideration as a public interest factor tending against prosecution, it must form part of a “genuinely proactive approach adopted by the corporate management team when the offending is brought to their notice”.
Self-reporting is no guarantee that a prosecution will not follow. Each case turns on its own facts. In appropriate cases the SFO may use its powers under proceeds of crime legislation as an alternative (or in addition) to prosecution; see the Attorney General’s guidance to prosecuting bodies on their asset recovery powers under the Proceeds of Crime Act 2002.
If the SFO uses its powers under proceeds of crime legislation, it will publish its reasons, the details of the illegal conduct and the details of the disposal. In cases where the SFO does not prosecute a self-reporting corporate body, the SFO reserves the right
- (i) to prosecute it for any unreported violations of the law; and
- (ii) lawfully to provide information on the reported violation to other bodies (such as foreign police forces).
The self reporting system is not so simple and taking legal advice as early as possible will enhance your company’s chances of a satisfactory result.