Clifford Chance

With the new corporate criminal offence of failure to prevent fraud now in force, the SFO and CPS have published updated joint guidance on their approach to prosecuting corporate offending. 

Shortly before the new corporate criminal offence of failure to prevent fraud entered into force last week (1 September 2025), the SFO and CPS published updated guidance on their approach to prosecuting corporate offending.

The updated guidance covers not only the new offence (joining other similar existing offences in relation to bribery and the facilitation of tax evasion that) but also the reforms that came into force at the end of 2023 that mean that companies can now be prosecuted for economic crimes committed by their senior managers when acting within the actual or apparent scope of their authority.

Whilst the new guidance primarily represents an updating exercise to take account of these new legislative developments, rather than a significant shift in how the SFO and CPS approach the prosecution of corporate offending, prosecutors have nonetheless used the release of this updated guidance to emphasise that they are ready and willing to utilise the new tools at their disposal, with Nick Ephgrave, Director of the SFO, stating that "Now is the time to take action. Corporations must get their house in order or be ready to face investigation". 

One positive aspect of the updated guidance is that for the first time it explicitly recognises that corporate offending may engage overlapping criminal and regulatory responsibilities across multiple agencies. It emphasises that decisions by prosecutors should reflect this wider enforcement context, and that early communication, collaboration and, where necessary, deconfliction between agencies is encouraged. The guidance is, however, short on detail of how this deconfliction should work in practice. Whilst it recognises that regulatory action may serve as an alternative to criminal prosecution, it also, perhaps more ominously, states that regulatory proceedings may complement criminal proceedings by addressing systemic failings, governance issues or fitness to operate.

Also of note from the accompanying press release is an explicit statement encouraging self-reporting from organisations in relation to fraud, stating that "The CPS and SFO encourage organisations to report fraud when they discover it. Organisations that self-report fraud demonstrate their commitment to responsible corporate governance." This clearly aligns with the SFO's recent drive to increase the number of organisations self-reporting suspected fraud, bribery and corruption, following the release of the SFO's updated Corporate Co-operation guidance earlier this year. Time will tell, however, whether the combination of tough talking about the use of the new tools at their disposal, and clearer guidance on the practicalities of self-reporting, will yield the desired uptick in self-reports.