Deferred Prosecution Agreements - New
SFO Guidance

30 October 2020

The SFO’s entered into its ninth deferred prosecution agreement (DPA) earlier today, this time reaching a resolution of bribery allegations with Airline Services Limited. With other corporate cases still on its books, we can expect to see more DPAs as these cases work through the system. So, what does that mean for companies which might be caught up in an investigation?
 

Aiming to be transparent, last week the SFO published a version of its internal guidance on DPAs, which it warns may have been redacted. Clearly written and thorough in scope, this guidance takes readers through the entire DPA process and, in some cases, adds to the information previously available from the agency. But it is not a one-stop shop. As the guidance itself cautions, it should not be relied on as the basis for any legal advice or decision and it is not intended to replace other policy documents, including not least the Code for Crown Prosecutors and the Deferred Prosecution Agreements Code of Practice. It is also important to remember that a DPA requires a judge’s approval before it can come into effect. The judgments in those cases, available from the SFO website, are a crucial resource. However, as is always the case in this field, there remain areas of ambiguity, two of which I will deal with in this blog. The first is the subject of co-operation.

The SFO always been clear that DPAs are reserved for companies that have co-operated with it. Last week’s guidance refers readers to the separate co-operation guidance it issued last year and which describes co-operation as providing assistance that goes above and beyond what the law requires including, amongst other things, preserving available evidence and providing it promptly in an evidential format. The reason for the requirement for the prompt provision of admissible evidence is that it “benefits the public and advances the interests of justice by enabling the SFO more quickly and reliably to understand the facts”. Quite where that guidance sits in light of the recent G4S DPA is unclear. There the company withheld full cooperation for some years before its cooperation intensified very significantly and the company at last provided substantial assistance to the SFO investigation. In approving the DPA, the court held that it was the overall level of co-operation that matters.

There is then the question of disclosure. When the SFO offers a company the opportunity to take part in DPA negotiations, it takes on a disclosure obligation. The Deferred Prosecution Agreement Code of Practice provides that the company “should have sufficient information to play an informed part in the negotiations. The purpose of disclosure here is to ensure that the negotiations are fair and that (the company) is not misled as to the strength of the prosecution case.” It follows that “the prosecutor must always be alive to the potential need to disclose material in the interests of justice and fairness” and that “consideration should be given to reasonable and specific requests for disclosure” by the company.

The recently published guidance takes a restrictive view of this disclosure obligation, providing that where a company has conducted an internal investigation or provided a self-report it should have sufficient knowledge of the strength of the evidence. It follows, so SFO staff are told, that in such a case the SFO is required only to disclose additional information that could undermine any conclusions that might be drawn from the face of these documents. In particular, it seems that the SFO will only consider serving witness statements it may have taken or records of interviews it has conducted where linked individuals have been charged and evidence served in those proceedings.

The SFO does not explain why fairness and the importance of not misleading the company as to the strength of its case might require such disclosure where individuals are charged but does not require it where they are not. Given the importance of witness evidence in any prosecutor’s assessment of the evidence (as well as in any trial), companies would be well advised to request such disclosure so that they can form their own view of the strength of the prosecution case. This then would enable them to play an informed part in the negotiations and ensure that they are not misled about the strength of the prosecution case.

Further information

For further information on the issues raised in this blog, please contact a member of our Corporate Crime team.

 

About the author

Alun Milford is a partner in the Criminal Litigation team and specialises in serious or complex financial crime, proceeds of crime litigation and corporate investigations. He has particular knowledge and experience of issues surrounding corporate crime and deferred prosecution agreements. He joined Kingsley Napley from the public sector where, over a twenty-six year career as a government lawyer and public prosecutor, he worked in a wide variety of roles including General Counsel at the Serious Fraud Office, the Crown Prosecution Services’ Head of Organised Crime, its Head of Proceeds of Crime and Revenue and Customs Prosecutions Office’s Head of Asset Forfeiture Division.

 

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