The Director of the Serious Fraud Office, David Green, regards DPA s as "a welcome addition to the prosecutor's tool kit" but nevertheless has confirmed that "Prosecution remains the preferred option for corporate criminality". I read the SFO's press releaseas saying that David Green's appetite as a prosecutor remains undimmed in respect of high profile corporate wrongdoing where the evidence is very strong and the prospects of conviction correspondingly good but that in more borderline cases (which are likely to be the majority), he now has a viable alternative to immediate prosecution which has more bite than civil recovery.
Yes, the wrongdoing which can be dealt with by way of a DPA is limited to, broadly speaking, economic and financial crime, but this encompasses fraud, bribery and money laundering and conspiracies, which is plenty for the SFO and the Crown Prosecution Service (CPS) to be going on with. False accounting and the Companies Act offence of destruction of company documents are also covered.
The FCA will no doubt be taking a keen interest in DPAs. Whilst the FCA is not yet a designated prosecutor and, therefore, currently has no power to enter into a DPA, the range of offences susceptible to a DPA includes offences under FSMA. These include the offences of contravening the general prohibition on carrying on regulated activity unless authorised or exempt, contravening the restrictions on financial promotions and that of misleading the FCA. Accordingly, the future designation of the FCA as a prosecutor would not come as a surprise.
There are numerous unknowns about how DPAs will operate in practice. One area of particular concern for individuals is this: as it is the business organisation itself and not its individuals which can be invited to enter into a DPA, how will a DPA entered into by the business impact upon the individuals within it? One can easily see how conflicts of interest could quickly emerge between the business and those individuals whose actions, in the view of the business, evidence the corporate wrongdoing. Where the relevant individuals deny any wrongdoing, will the Court refuse to bless the proposed DPA?
Accordingly, those in the board room and their advisors would be wise not only to keep a watchful eye on the first DPA but also to monitor what action is taken against any relevant individuals.