New tool to tackle corporate wrongdoing—life after the first DPA

New tool to tackle corporate wrongdoing—life after the first DPA

Crispin Aylett QC and Rachna Gokani of QEB Hollis Whiteman Chambers advise that the success of the first deferred prosecution agreement (DPA) should mean that the Serious Fraud Office (SFO) will see this is an opportunity to save time and money in the prosecution of corporate defendants.

Original news

SFO agrees first deferred prosecution agreement, LNB News 30/11/2015 52

Lord Justice Leveson has approved the SFO’s first application for a deferred prosecution agreement (DPA). It was agreed with ICBC Standard Bank Plc following its indictment alleging a failure to prevent bribery contrary to the Bribery Act 2010. Under the DPA, the bank will pay financial orders of $25.2m, among other payments. The bank will also be subject to an independent review of its anti-bribery and corruption controls.

What does this case tell us about how deferred prosecution agreements (DPAs) are being used by the SFO?

It is difficult to establish any pattern based on a single DPA but the success of this one will encourage the SFO to continue with those that are ongoing and to use DPAs in appropriate cases. There is now a benchmark against which future proposed applications can be measured and ‘a template for future agreements’ (David Green, director of the SFO). However, the SFO has made it clear that its willingness to enter into a DPA in this case should not be mistaken for a desire to force a DPA onto every corporate case. The bar remains high.

What were the challenges in securing this DPA?

Although it was apparent from an early stage that both sides were keen to enter into a DPA, nonetheless the negotiations over the precise terms of the statement of facts—which has to be an agreed document—were protracted. Once that was agreed, issues arose over who in the document should be anonymised.

There was an obvious tension between transparency and privacy which was resolved (after lengthy discussions between the parties and also in the course of the paragraph 7 hearing in chambers) by publishing the names of those who had been significantly involved in the transaction: the

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