On November 30, 2015, a judge approved the U.K.’s first-ever deferred prosecution agreement (DPA)—a concept that was introduced into English law only last year. The deal allows ICBC Standard Bank Plc (ICBC), a former subsidiary of South Africa’s Standard Bank Group Ltd., to avoid prosecution in the U.K., provided it complies with the terms of the DPA. This is part of a global settlement with the U.S. Department of Justice and the U.S. Securities and Exchange Commission (SEC). In exchange, the bank will pay a $16.8 million fine to the Serious Fraud Office (SFO), $7 million in fines and interest to the Tanzanian government, $4.2 million in fines to the SEC, and another $8.4 million in disgorgement of profits.
The landmark agreement stems from the actions of two officials at Stanbic Bank Tanzania Ltd., a sister company to ICBC. In March 2013, the two men paid $6 million to a Tanzanian firm owned by two Tanzanian government officials. The payment was linked to a deal between the bank and the Tanzanian government to raise $600 million for a development plan. Local bank employees became suspicious and notified the London subsidiary when the money was deposited into the Tanzanian firm’s account, but withdrawn within days. The bank subsequently self-reported the suspicious activity to the SFO before carrying out its own investigation in cooperation with authorities.
The ICBC DPA has been characterized as a “template for future agreements” by the Director of the SFO. The success of this new DPA procedure, especially in light of the expense and complexity of prosecuting corporations in the U.K., is a definite harbinger of the future of such plea deals in the U.K. Unlike most U.S. deferred prosecution agreements, the courts in the U.K. have oversight over each major step in the process. Of particular note, the SFO’s Joint Head of Bribery and Compliance has made clear that the agency will not wait for the results of a company’s internal investigation, but rather will lead and control the investigation with the company’s support and cooperation—a crucial difference that may necessarily require a waiver of attorney-client privilege.