For corporate entities who are either under investigation or fear investigation by the Serious Fraud Office, the “Deferred Prosecution Agreement” represents a potent weapon in the SFO’s arsenal. DPA’s were first introduced into English law by the Crown and Courts Act 2013 which entered into force in February 2014.
The aim of a Deferred Prosecution Agreement is to encourage the self reporting of corporate wrongdoing to the SFO and, through a process of cooperation and negotiation avoid a criminal prosecution of the corporate entity. Rather than criminal sanctions, a DPA involves the parties agreeing to civil penalties, such as a fine, the payment of compensation to victims and the introduction of internal measures and procedures to prevent future offending.
However, when a corporate entity is considering approaching the SFO in respect of a Deferred Prosecution Agreement, a delicate risk assessment must be undertaken to assess whether it is an appropriate course of action. It is of cardinal importance to ascertain what the prospects are of the SFO successfully mounting a prosecution before approaching them to defer that potential prosecution.
Even if an approach for a DPA is considered potentially appropriate, the process is not without risks and the DPA structure does not offer guaranteed benefits to reassure companies considering pursuing this avenue. Firstly there is no guarantee that a company that self reports will be offered a DPA. It is entirely at the prosecutor’s discretion.
Furthermore, the process is subject to Judicial oversight that is outwith the control of the parties; if a DPA is offered a Judge must give permission for negotiations to progress and if an agreement is reached, that agreement must be approved by the Court as being both in the interests of justice and fair reasonable and proportionate.
As the first Deferred Prosecution Agreement was confirmed by Lord Justice Leveson as recently as 30th November 2015, it is obvious that the process lacks a degree of certainty and clarity for potential participants. https://www.sfo.gov.uk/2015/11/30/sfo-agrees-first-uk-dpa-with-standard-bank/
Finally, it should also be considered that it may not be in a company’s best interests to self report- although the Bribery Act created a wide ranging offence of corporate failure to prevent Bribery, there is no equivalent in relation to a corporate failure to prevent, for example, fraud. The SFO has limited powers to prosecute companies in those circumstances as it must show that the controlling mind of the company, ie board level was aware of the criminal behavior in order to secure a corporate conviction. In such circumstances, a company should take advice as to how to act in its’ best interests.
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Cartwright King’s team of expert serious fraud lawyers can advise your company in respect of the potential merits and risks of approaching the SFO in relation to self reporting and potential Deferred Prosecution Agreements.
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