Commenting on its strict requirements, Duncan said, “The Guidance is designed for the prosecutorial agencies rather than corporates and their advisors. However, what is clear is that a very high standard of cooperation is expected if a company is to avoid prosecution. Factors mentioned in the “additional public interest factors against prosecution” include corporate management adopting a “genuinely proactive approach. . . involving self-reporting and remedial actions”, “making witnesses available and disclosure of details of any internal investigation” and “a genuinely proactive and effective corporate compliance programme”. Given these stringent expectations, companies will need to weigh carefully the risks and benefits of self-disclosure. The guidance makes clear that half-hearted cooperation and forum shopping will be dealt with harshly.”
Duncan added, “The guidance also mentions the fact that an offence was committed at a time when the company had an ineffective compliance programme, will be treated as an “additional public interest factor in favour of prosecution”. This is clearly designed to flag that companies within scope should be proactively reviewing the effectiveness of their internal controls now, ahead of the new offences coming into force on 1 September.”