Serious Fraud Office ("SFO") has published "Handbook on the Evaluation of Compliance Program" ("Handbook"), which are internal evaluation handbook for the usage within the organization, in order to ensure transparency in the evaluation of compliance programs.
Compliance programs by SFO is defined as a tool used to ensure compliance of companies with legal requirements, regulations, and in-house instructions and guidelines. In the Handbook, it is emphasized that compliance programs should be implemented effectively, and it is stated that these programs should be designed in a way that is company-specific, measured, based on risk assessment and has a regular control mechanism.
According to the Handbook; while evaluating companies' compliance programs, prosecutors should evaluate separately the design of this program at the time of the crime, its current design and its design in the future.
Accordingly, if the company does not have an effective compliance program at the time of the crime, there is a public interest factor in the prosecutor's investigation. However, if the company has taken adequate measures to prevent corruption of the company-related people at the time of corruption / offense, the company will have the right to defense. In cases where the company makes a certain effort to prevent corruption even though this effort is insufficient; this should be taken into account when determining the penalty.
On the other hand, the company may have changed its compliance programs between the time the crime was committed and the time the charges were made. A company that has not taken adequate measures at the time of the offense may have taken adequate measures by the time charges were made. In this case, the prosecutor should assess whether the company is taking remedial actions and trying to create an effective compliance program. In such a case, if the filing of the public claim is considered to be postponed, the current status of compliance programs should be taken into account. The fact that the company has developed compliance programs within the process should be considered as an important factor in postponing of the filing of the public claim. When deciding in such a situation, the court needs to assess whether the penalty imposed on the company would prevent the company from implementing effective compliance programs.
Finally, the decision to postpone the filing of the public claim may include instructions and guidelines on how to set up a compliance program or how to improve the existing program. In this case, the future status of the company's compliance programs should also be evaluated. In such a case, this decision should also include points on how to monitor whether these changes were made.
In addition to the aforementioned principles, evaluation of compliance programs should be started immediately while conducting an investigation and a specific approach should be taken for each concrete case with the data and evidence obtained from many different sources.
You can access the entire Handbook in question from the link below.