Skip to main content

News

  • AddRemove
  • Build a Report 
Media Coverage

Deferred Prosecution Agreements: one year on

10 November 2016
The Times
It has been almost a year since the first Deferred Prosecution Agreement ("DPA"). There has been only one further DPA since. What is the current state of play, and what does the future hold?

The legislation underpinning DPAs came into force in February 2014. Since then both the SFO and companies have been working through the ramifications of the legislation. Importantly, a condition of the SFO offering a DPA is that the company must be cooperating, where the SFO alone determines what constitutes cooperation.

In practice it may sometimes be difficult to identify what constitutes cooperation. For example, the SFO may want a company to stop its own internal investigation whilst the SFO investigates. This may present a company, particularly if listed, with a difficult balance between cooperating with the SFO and the need to report to shareholders or the stock exchange on relevant matters.

Another possible area of tension between the SFO and companies under investigation relates to claims that documents are subject to legal professional privilege. The SFO has publicly stated it believes companies sometimes assert claims to privilege without good reason. In an extreme case might this be a factor in the company being viewed by the SFO as not cooperating? These issues are potentially important because if the SFO views a company as not cooperating, it will not be offered a DPA.

The limited experience of what is required to be offered a DPA means certainty is in short supply. However this may be resolved if more DPAs are approved, so the market can learn from those successes.

So what does the future hold? On 25 October 2016 the Director of the SFO, David Green QC, gave us a glimpse. Giving evidence to the Justice Select Committee, he said that there would be "some significant" DPAs "over the coming months". These are to be welcomed, as each will demonstrate how the SFO, the company and the Court have approached issues such as what in the SFO's view constitutes "cooperation".

In his evidence, Mr Green also touched on incentives for a company to self-report to the SFO, where appropriate. Currently the legislation underpinning DPAs allows a reduction in sentence of one third – which is the same as if the company was prosecuted and entered a guilty plea.

Mr Green referred to the 12-month trial the United States Department of Justice is running, in which companies which self-report offences under the US Foreign Corrupt Practices Act are eligible for a discount of up to 50%. In this context Mr Green wondered whether the UK should review the degree of incentive available. As he said, "we want to incentivise, surely, self-reporting to save a state resource and to increase corporate good conduct."

It therefore looks like further DPAs will be announced, allowing corporates greater certainty in their dealings with the SFO. Also, with his comments at the Select Committee, Mr Green has raised the issue of identifying appropriate incentives to encourage self-reporting, so perhaps creating a "virtuous circle" of more DPAs.

Media Contact

  • Helen Obi
    Senior Corporate Communications & PR Manager
    T +44 20 3130 8527
  • Katie Tibbitts
    Senior PR Executive
    T +44 20 3130 8120

Related Information

  • Related People
    Alistair Graham
    T +44 20 3130 3800
    Chris Roberts
    Associate
    T +44 20 3130 3543
The Build a Report feature requires the use of cookies to function properly. Cookies are small text files that are placed on your computer by websites that you visit. They are widely used in order to make websites work, or work more efficiently. If you do not accept cookies, this function will not work. For more information please see our Privacy Policy

You have no pages selected. Please select pages to email then resubmit.