The Serious Fraud Office (SFO) is now facing a more secure future than it was before the election.
It has many tools at its disposal; including legislation which has, in recent years, given it far greater scope to tackle business crime. Legislation to tackle bribery, money laundering and fraud have all been introduced to address specific white-collar crime issues. The Bribery Act specifically has made corporates criminally liable while the introduction of unexplained wealth orders (UWO’s) will further boost the authorities’ powers regarding civil recovery.
Perhaps the main change that we may notice regarding the SFO is in its use of deferred prosecution agreements (DPA’s).
A DPA is an agreement reached between a prosecutor and an organisation which could be prosecuted. It is finalised under the supervision of a judge. The DPA allows a prosecution to be suspended provided that the organisation meets certain specified conditions.
The benefit for a corporate is that a DPA gives it a chance to make full reparation – essentially, put right the wrongs - without the reputational or financial damage that could result from a conviction.
DPA’s were introduced on 24 February 2014, under the provisions of Schedule 17 of the Crime and Courts Act 2013. They are available to the Crown Prosecution Service and the SFO, who can see them as a time and cost-saving alternative to a lengthy, complex trial.
But a company is only likely to be invited to enter DPA negotiations if it has assisted the SFO investigation. If the negotiations go ahead, the company agrees to a number of terms, such as accepting a financial penalty, paying compensation and, when necessary, co-operating with future prosecutions of individuals.
So far, there have only been four DPA’s. But that number is likely to increase. This is because the SFO is now used to having the DPA as an option. It is also because many long-running investigations will near a conclusion, some of which the SFO will deem suitable for a DPA.
If DPA’s are to become more commonplace, therefore, a corporate seeking one needs to know the best way to approach the SFO if they believe wrongdoing has been committed.
While the circumstances may vary from case to case, a number of factors will boost a corporate’s chances of obtaining a DPA:
If a company takes it upon itself to report the wrongdoing that it has committed (or has been committed in its name), it will enhance the chances of a DPA being granted. In the second DPA to be granted in the UK – the case known as XYZ – the judge cited the promptness of the self-reporting as being in the interests of justice and went as far as to say “Openness must be rewarded and seen to be worthwhile.’’
What must always be borne in mind, however, is that self-reporting is something that has to be done carefully and appropriately. It is a major step and anyone considering it will need advice from those with both the relevant legal expertise and extensive experience of dealing with the SFO.
A company failing to self-report the wrongdoing may reduce its chances of obtaining a DPA. But it will not make it impossible. In arguably the UK’s most high-profile DPA, Rolls-Royce did not report its extensive use of bribery in far-flung countries. But once the SFO was aware of the bribery, the firm went to great lengths to cooperate with it; even to the point of bringing to the authorities’ attention wrongdoing that they were not already aware of. This cooperation was highlighted by the judge as a factor in the DPA being granted.
It is vitally important, however, that any offer of cooperation is not just offered to the SFO when it looks like you are about to be charged. The judge in the XYZ case stated clearly that if those under investigation did not offer openness when investigations were underway then they can expect little or no reward; meaning no DPA. The cooperation has to be there from Day One and be genuine and ongoing. By appointing a solicitor with experience and expertise in dealing with the SFO, you can be advised on exactly how to cooperate and what it entails.
When Standard Bank obtained the UK’s first DPA, it did so having immediately reported its wrongdoing and taken a strong, proactive approach to disclosing everything it could. It acted swiftly to put right the problems. All DPA’s that have been granted so far have been made after the corporates under investigation removed senior managers who were either implicated in the wrongdoing or should have been aware of it.
Speaking at the Cambridge Symposium on Economic Crime 2017, the SFO’s General Counsel, Alun Milford, said:
“Deferred prosecution agreements are pragmatic devices aimed first at incentivising openness leading to the uncovering of financial crimes and secondly at allowing companies to account to a court for those crimes in a way that does not also punish its innocent employees, suppliers and the local community in which it operates.’’
In a nutshell, companies are best served by self-reporting and the introduction of fit-for-purpose compliance structures. As the SFO looks towards its future and its use of DPA’s, that is what the SFO will be seeking from those looking to avoid prosecution.
The challenge for corporates wanting a DPA from the newly-secure SFO is to make sure they meet that criteria.