On 23 October 2020, the Serious Fraud Office (“SFO”) published a chapter from its internal operational handbook in an effort to provide greater transparency for companies seeking to enter into a Deferred Prosecution Agreement (“DPA”). This reflects the SFO’s desire to encourage companies to disclose their transgressions and pre-empted the announcement of a new DPA between the SFO and Airline Services Limited, with final approval granted on 30 October 2020.
This summary outlines the key details of the chapter and offers some preliminary guidance for companies.
Who and what do they apply to?
A DPA is an agreement between an organisation – a corporate body, partnership or unincorporated association (referred to below as “the Company”) – and the SFO/Crown Prosecution Service not to pursue the criminal prosecution of said Company when alternative measures are deemed to be in the public interest. The public interest in this context is broadly defined as ‘…anything affecting the rights, health, or finances of the public at large.’
This discretionary tool, which can also be applied retroactively, relates to fraud, bribery, false accounting and other financial crimes. Of the DPAs concluded thus far, Tesco and Rolls Royce stand out as notable examples of companies that have satisfied the prescribed requirements and avoided criminal charges.
Enacted in 2014 under Schedule 17 of the Crime and Courts Act 2013, the law makes provisions for the Company to avoid being prosecuted provided that the Company:
1) Cooperates with the prosecutors;
2) Discloses accurate information related to the wrongdoing;
3) Promises to pay a financial penalty and compensate victims where possible; and
4) Improves their internal compliance programme
If the Company has complied with all of the obligations of the DPA, at the end of the deferred period the Company will not be prosecuted and will pay significantly less than the financial penalty which would have attached to a conviction.
How to engage
The Company should approach the SFO with self-reported evidence of wrongdoing and ensure that the information provided is both transparent and accurate. DPAs are concluded under the supervision of a judge, who must be convinced that the DPA is ‘in the interests of justice’ and that the terms are ‘fair, reasonable and proportionate.’
A key advantage of a DPA (for both defendant companies and the SFO) is that they avoid lengthy and costly trials. In the vast majority of DPAs, the financial penalties imposed have been reduced by approximately 50% to that which might be imposed at trial in recognition of the cooperation demonstrated by the Company.
The Company will be permitted to continue trading, with the DPA process remaining confidential, until the Court grants final approval. During this period, the Company should endeavour to take steps to remedy their actions, preserve evidence and make witnesses available for interview.
Although the risk/reward ratio will vary from case to case, a commitment to cooperation, compliance and compensation will give the Company the best possible chance to avoid prosecution and serve the public interest.
Gherson provides specialist advice on white-collar crime and can offer advice on and assist in the preparation of DPAs.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please don’t hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.