As the landscape of corporate crime continues to evolve, staying ahead of legal developments is crucial for businesses worldwide. Today, we’re thrilled to sit down with Desiree Sainthrope, a legal expert with deep expertise in drafting and analyzing trade agreements, and a recognized authority on global compliance. With her extensive knowledge of intellectual property and emerging technologies like AI, Desiree brings a unique perspective to the recent updates in corporate prosecution guidance from the Serious Fraud Office (SFO) and Crown Prosecution Service (CPS). In this conversation, we’ll explore the significance of this guidance, its connection to new legislation, and what it means for corporations navigating an increasingly complex regulatory environment.
Can you give us an overview of why the updated corporate prosecution guidance from the SFO and CPS is generating so much attention, especially as it’s the first revision in several years?
Absolutely. This update is a big deal because it’s the first revision since 2021, and a lot has changed in the corporate crime landscape since then. We’re talking about a period that’s seen significant legislative shifts, particularly with the introduction of new laws around economic crime. The guidance reflects a tougher stance from prosecutors, signaling that they’re serious about holding companies accountable. It’s not just a procedural update; it’s a clear message about the direction enforcement is heading, and businesses need to sit up and take notice after such a long gap.
How does the timing of this guidance tie into the recent Economic Crime and Corporate Transparency Act, and why does it matter that it was released just before a key fraud prevention measure took effect?
The timing couldn’t be more strategic. The Economic Crime and Corporate Transparency Act, or ECCTA, has introduced critical changes, including the failure to prevent fraud offense, which became effective on September 1. Releasing the guidance just weeks before this was no accident—it’s meant to prepare the ground for how prosecutors will approach these new rules. It underscores the urgency for companies to align with the Act’s requirements right from the start, especially since failing to prevent fraud is now a prosecutable offense. It’s almost like a warning shot to ensure corporations are ready for stricter scrutiny.
The guidance seems to take a no-nonsense approach toward businesses. What specific elements stand out as sending a strong message to corporations?
You’re right, it doesn’t pull any punches. One key element is the emphasis on accountability at every level, particularly with the expectation that companies have robust prevention measures in place. There’s also a clear push from SFO leadership—think of statements like needing to “get their house in order”—which sets a tone of zero tolerance for lapses. The guidance makes it explicit that prosecutors will dig deep into whether a company’s systems and culture could have prevented wrongdoing. It’s a signal that excuses won’t cut it anymore; businesses must proactively demonstrate compliance.
While the guidance isn’t seen as revolutionary, it’s still considered important. What are some critical points in it that businesses should focus on to stay compliant?
Even if it’s not groundbreaking, it’s a vital roadmap. One critical point is the clarity around what prosecutors consider when deciding to charge, especially in failure to prevent cases. It outlines how defenses like having reasonable prevention procedures will be evaluated, which gives companies a benchmark to aim for. Another aspect is the reference to government-issued prevention guidelines during investigations. If a company can show early on that it followed those, it might influence whether charges are even pursued. Businesses should see this as both a checklist and an opportunity to strengthen their internal controls.
The guidance highlights alternative charges as an option for prosecutors. Why should this be a wake-up call for the corporate world?
It’s a wake-up call because it shows prosecutors have more flexibility than ever. They’re not locked into pursuing just one type of charge—if one avenue doesn’t work, they can pivot to another. This means companies can’t just prepare for a single line of attack; they have to anticipate multiple angles. With new laws expanding how liability is determined, like holding firms accountable for senior managers’ actions, the risk of prosecution has widened. Businesses need to understand that prosecutors are being encouraged to think creatively about charges, and that unpredictability raises the stakes.
There’s a notable shift in the guidance about assessing a company’s ability to pay fines early in the process. How does this differ from past practices, and why is it significant?
Historically, discussions about a company’s ability to pay fines happened much later, often during sentencing. This guidance moves that conversation to the pre-charge stage, which is a significant shift. It means prosecutors are factoring in financial capacity right from the start, potentially influencing decisions on whether to pursue charges or negotiate resolutions. For businesses, it’s a reminder that financial transparency and readiness to address penalties could shape the trajectory of an investigation. It’s a practical change that forces companies to think about their resources early on.
The guidance also mentions collaboration with other agencies or referrals to regulators. How does this multi-agency approach impact corporations under investigation?
This multi-agency approach can complicate things for corporations. When investigators work with other bodies or refer cases to regulators, it broadens the scope of scrutiny. A company might not just face criminal charges but also regulatory penalties or parallel investigations, which can drain resources and reputation. While collaboration between agencies isn’t entirely new—it’s been promoted as a way to maximize impact—it’s a stark reminder in this guidance that businesses could be dealing with multiple fronts. It pushes companies to ensure compliance across the board, not just with one authority.
Looking ahead, what is your forecast for how this guidance and the broader legislative changes will shape corporate behavior in the coming years?
I think we’re going to see a real shift in how corporations approach compliance. With this guidance and laws like the ECCTA in place, the pressure to build stronger internal systems will intensify. Companies will likely invest more in prevention measures and training to avoid liability, especially as prosecutors have clearer tools and expectations. We might also see a rise in early cooperation with authorities as businesses try to mitigate risks. Over the next few years, I predict a cultural change where proactive compliance becomes a core part of corporate strategy, rather than an afterthought, because the cost of failing to adapt is just too high.
