What the SFO wants from companies seeking DPAs

CI: To what extent do you envisage companies being granted DPAs more regularly in the future?

AM: We’ll see. The point is that we decide how to deal with each case based on its own specific facts. In Standard Bank’s case, we thought that a DPA on the right terms would meet the interests of justice – an assessment the judge agreed with.

CI: SFO Director David Green described the DPA as a landmark decision. Apart from the fact that it is the first of its kind in the United Kingdom, in what other ways is it a landmark decision?

AM: It was the first use of the United Kingdom’s deferred prosecution agreement powers and the first use of section 7 of the Bribery Act. How many landmarks do you want in one case?

CI: Will there be a correlation between companies that choose to self-report and those that are granted DPAs or settlements?

AM: Common features in those cases in which we offer companies the opportunity of DPA negotiations will be demonstrable cooperation and a commitment to address problems head on and put things right.

CI: What are the incentives for companies to self-report Bribery Act violations to the SFO?

AM: Self-reporting is one way of demonstrating cooperation and a commitment to putting things right. These are factors we consider when assessing whether a prosecution is in the public interest or whether a DPA would be more appropriate. While, of course, a corporate with a DPA ends up accounting to a criminal court for the wrongdoing, it avoids a conviction and the collateral damage that would bring. That is a big prize.

CI: A number of groups have urged the SFO to avoid making DPAs and settlements as commonplace in the United Kingdom as they are in the United States. To what extent do you think the United Kingdom will mirror the United States’ tendency to offer companies DPAs and settlements, and how would you respond to the warnings?

AM: Implicit in your question is a criticism of the way the DPA system works in the United States. I would only comment that theirs is a system devised in their country, and they will manage it as they see fit. Our system of DPAs was inspired by the United States system, but it has significant differences to reflect our own legal traditions. It will play out in its own way.

CI: Critics of DPAs and settlements view the deals as a chance for companies to buy their way out of trouble. How would you respond to this criticism?

AM: It’s wrong. Our statutory scheme provides that the penalty aspect of a DPA must be broadly comparable to a fine that a court would have imposed on conviction following a guilty plea. Our statutory scheme also ensures that, in cases where DPAs are granted, there is transparency in our dealings with the company.

CI: To what extent do you expect to see other companies follow Brand-Rex’s example of self-reporting its failure to prevent bribery under the Bribery Act?

AM: That’s a question you should put to my Scottish colleagues. Brand-Rex was a Scottish company which reported itself to the Scottish authorities, who in turn used the remedies available to them in their legal system to secure the best outcome they could.

CI: Aside from self-reporting, what other actions can companies take to mitigate repercussions from the SFO for violating the Bribery Act?

AM: It’s not just the report but the continuing, active cooperation that we look for. Your readers should read closely the joint SFO and Crown Prosecution Service Deferred Prosecution Agreements Code of Practice that was issued last year and compare it carefully with the judge’s declaration in the Standard Bank case. It’s all there.



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