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10 ways to get a Deferred Prosecution Agreement

  • United Kingdom
  • Fraud and financial crime
  • Litigation and dispute management

07-07-2021

 

As the UK Bribery Act (“UKBA”) turned 10 on 1 July 2021, we have looked back over the previous enforcement actions in the UK to identify 10 ways a company can secure a Deferred Prosecution Agreement (“DPA”).

DPAs are not all about the UKBA. They became available to UK prosecutors in February 2014, two-and-a-half years after the UKBA came into force, in relation to a wide range of alleged economic crimes (as set out in Schedule 17 to the Crime and Courts Act 2013), committed by companies.

But of the 10 DPAs which have to-date been successfully agreed and approved by the Court, seven relate to bribery (the others being used to resolve charges of fraud and false accounting). DPAs have therefore become a part of the UK’s bribery enforcement toolkit, and a key means for UK prosecutors to resolve corporate breaches of the UKBA.

Unfortunately, formal guidance on how companies can secure a DPA has been relatively limited. The DPA Code of Practice (“the DPA Code”), published jointly by the Crown Prosecution Service and Serious Fraud Office (“SFO”), is largely procedural, and contains only limited pointers for companies involved in the DPA process. The SFO’s operational guidance covers a wide range of relevant topics, in varying levels of detail. The section on DPAs is brief and high level, although the sections covering corporate self-reporting and cooperation are more illuminating (and we have considered these while preparing this article).

Companies wanting to secure a DPA are best advised to look closely at the documents published in relation to the other concluded DPAs, as well as the extensive legal commentary which is in the public domain, and apply this to their own facts and circumstances.

However, it is safe to say that one keyword has emerged from the available case law to date: cooperation. The SFO has published specific guidance on corporate cooperation, where it states that “cooperation by organisations benefits the public and advances the interests of justice by enabling the SFO more quickly and reliably to understand the facts, obtain admissible evidence, and progress an investigation to the stage where the prosecutor can apply the law to the facts.”

This word is sometimes held out as having some sort of special power; it is referred to in some commentary as a magic ingredient or a key to success. But, while cooperation is a significant factor (and one featuring significantly in our discussions below), it’s important not to put too much weight on it, and certainly not rely on cooperation alone.

In the UK, cooperation is, officially, simply one of a number of factors the prosecutor will take into account when considering whether a DPA could be a suitable outcome. There is absolutely no guarantee that cooperation (even “full robust cooperation”, as the SFO has referred to it) will always lead to a DPA. For example, in 2018 despite having self-reported and offered the prosecutor full cooperation Skansen Interiors Limited was not offered a DPA but was instead prosecuted and convicted following a contested trial of failure to prevent bribery.

What is clear, is that a lack of – or even lower level of – cooperation – will significantly diminish the chance of getting a DPA.

There are two key periods in the timeline for securing a DPA: before and after the prosecutor extends a formal invitation to enter into DPA negotiations.

BEFORE THE INVITATION LANDS

It’s never too soon to be thinking of a DPA. Companies with their sights set on this outcome should be working towards it right from the word ‘go’ – in other words, as soon as credible evidence of potential trouble emerges. At this point, a company will be facing its first key decision which could affect how the case is disposed of: whether or not to self-report. This decision is a hard one, and one which must often be made based on relatively scant facts, and with a whole range of unknowns lying ahead.

1. Self-reporting has come to be regarded as a prerequisite to get a DPA, although this is not set out formally in law or official guidelines. One of the largest DPAs notably did not involve a self-report but the company was said to have offered an ‘extraordinary’ level of cooperation which put it in the same position as if it had self-reported. This was an unusual case, however, and so self-reporting will for most companies be an essential ingredient of a successful agreement. It is arguable that coming forward, without compulsion, to report possible corruption shows perhaps the purest form of willingness to cooperate with the authorities.

2. Examining your ABC procedures is the next piece of the puzzle. Once the prosecutor (we assume from here on that this will be the SFO) gets wind of a possible failure to prevent bribery offence, it will want to know if the company could feasibly raise a defence that there were adequate ABC procedures in place at the time of the relevant conduct. Where procedures can be shown to have been adequate, a prosecution may not materialise and the idea of a DPA becomes moot. Where procedures were weak and there are clear steps that could be taken to make improvements, this can provide some pointers towards the sorts of terms the SFO may want the company to agree to under the DPA.

3. It’s not too late to make improvements to the ABC programme at this stage. Even after a self-report, taking steps to strengthen weak ABC procedures shows good faith and a willingness for the company to mend its ways. Steps which could be taken at this point are to conduct a full ABC risk assessment, refresh ABC policies, conduct enhanced ABC training and audit relationships with third parties. In one of the best-known DPAs to date, the subject company made significant changes to its compliance programme after corruption had been uncovered, and was praised by the SFO for this. In its judgment, the court pointed to specific improvements to the structure of the company’s compliance function and employees, conduct at the top, third-party due diligence procedures, mandatory training for all staff, and extensive monitoring of ABC procedures.

4. As well as making changes now, you should commit to future improvements. This will demonstrate a true willingness to conduct business ethically and show that you have properly reflected and shown insight into why corruption occurred in the first place.

5. Although your aims and those of the SFO, as investigator and prosecutor, will not be fully aligned, it will benefit your position if you can show that you are a trusted ally. You should be working towards the same ultimate outcome, and will both be looking for the court’s blessing on your agreement. While of course ensuring that the company’s best interests are preserved, this may mean a certain amount of give and take during the build-up to the DPA.

THE DPA NEGOTIATION PERIOD

Once the SFO has conducted its investigations and is satisfied that there is sufficient evidence of an offence, it will consider whether the public interest would be likely to be met by DPA. If so, it may invite the company to enter into DPA negotiations. The DPA Code makes very clear that this is a matter for the prosecutor’s discretion, and that the company “has no right to be invited to negotiate a DPA”.

The invitation – if it comes – will be in the form of a formal letter. As explained in the DPA Code, “that letter will constitute the beginning of the DPA negotiation period, which period will end on either the withdrawal of one or both parties from the process, or the approval/refusal by the court of a DPA at a final hearing.”

What is key to keep in mind here is that no one wants this all to fall apart. A lot of hard work has gone in to getting to this point, and there is a lot more ahead so (assuming the company accepts the invitation) the parties’ interests are arguably more aligned from this point onwards.

6. If you want this all to end with a DPA, you must keep on cooperating. It is important not to assume that once the invitation letter has arrived, a DPA is a given. This is far from the case. The DPA Code explains that either party can withdraw from negotiations, without any obligation to give reasons (although it would be usual for the prosecutor to provide some details).

7. You have already cooperated, you are cooperating now, and now you must commit to future cooperation, over the course of the proposed DPA period. It is likely that the DPA will contain an explicit term to this effect, covering cooperation with both UK and overseas authorities, commonly three years. Specific actions you may need to agree to take, once the DPA is in place, include locating and producing witnesses, sharing material, and updating the SFO of any relevant corporate developments.

8. You must keep thorough records. As mentioned, further cooperation under the terms of a DPA may include the sharing of material with the SFO or other domestic and overseas agencies. In addition, during the DPA negotiation period, it is likely that detailed questions will be asked of the company, and that you will want to make representations to the SFO to support your position on key proposed terms of the DPA. Being able to provide prompt and thorough input will demonstrate your good faith and, again, cooperativeness. The SFO has provided considerable detail on this point in its corporate cooperation guidance, including in relation specifically to digital evidence and devices

9. Set clear but realistic goals. The key to any negotiation is to have a clear end in sight, and figures in your own mind which represent your best and worst permissible outcomes. DPA negotiations are no different. There are a number of measurable factors which will ultimately become terms of the DPA and for which you should be planning ahead. Examples include the length of the DPA, culpability and harm factors, and the various financial elements (including the penalty and contribution to costs). The SFO is of course in the driving seat, and as a public body is subject to certain restrictions on what it can agree to. Nevertheless, there will be opportunities to influence the outcome and some degree of give and take in the negotiation process.

10. DPA negotiations can be lengthy and complex, with many unexpected twists and turns. Hold your nerve. As the end of the negotiations approaches, the court becomes involved. This can lead to administrative burdens and delays, but taking a cooperative approach (while ensuring the company’s best interests are protected) should help to smooth the way to the moment when the court hands down its approval of your DPA.

If you would like to know more about the UKBA, anti-bribery compliance programmes or DPAs, the specialists in our Corporate Crime & Investigations team would be happy to help you. Our Global anti-bribery and corruption guide also provides a snapshot of the key elements of the anti-bribery legislation in various countries across the globe.