Deferred prosecution agreements (DPA’s) made the headlines when Rolls-Royce paid a total of £671M to settle allegations that it used bribes to land export contracts and Tesco was fined £129M for having misreported profits.
Bot settlements were DPA’s. They were big penalties but obtaining a DPA meant the companies did not face criminal prosecution. If a company wants a DPA, however, it has to know how to manage its affairs when an investigation commences.
DPA’s were introduced under the provisions of Schedule 17 of the Crime and Courts Act 2013. They are available to the Crown Prosecution Service (CPS) and the Serious Fraud Office (SFO).
A DPA is an agreement reached (under the supervision of a judge) between a prosecutor and an organisation which could be prosecuted. It allows a prosecution to be suspended provided that the organisation meets certain specified conditions. The organisation must admit the criminal behaviour and agree to work under certain conditions that the SFO or CPS decides to impose. These conditions could be changes to working practices or staff, paying fines or introducing anti-corruption measures.
If the company meets these conditions for a set length of time, it avoids prosecution.
But the authorities will only offer a DPA to a company under investigation if they believe:
* It is a more suitable option than prosecution.
* The company has shown a genuine will to put right the wrongdoing.
* The company has made efforts to prevent it happening again.
If a company has uncovered wrongdoing, it needs to seek specialist legal advice as soon as possible.
Such an expert can:
* Assess the wrongdoing.
* Advise on how to report it – if the authorities are not already aware of it.
* Help devise procedures to prevent it happening again.
If a company is to have any chance of obtaining a DPA, it must work with the investigators.
This can involve a number of factors:
Cooperation: Rolls-Royce did not self-report its wrongdoing but it did do all it could to assist the SFO in its investigations once the illegal activity had been uncovered. The DPA settlement noted the aircraft manufacturer’s “extraordinary co-operation’’, which not only helped it obtain a DPA; it also counted towards the 50% discount on the size of the financial penalty imposed as part of it.
Culture change: A DPA is only likely to be offered if the SFO (or CPS) recognises that changes have been made to the way a company under investigation operates. The Rolls-Royce DPA settlement noted that the firm is “no longer the company that once it was’’; having introduced anti-bribery measures, carried out its own investigations, reviewed its ethics and compliance policies and reexamined its approach to due diligence, risk assessment and relationships with intermediaries.
Personnel: Rolls Royce disciplined 38 people and by the time the DPA was concluded all the senior executives who had been in charge during the period under investigation had departed. Tesco saw a number of senior departures prior to its DPA; with Chief Executive Dave Lewis stating “We have worked hard to make Tesco a different company’’. Changes at board level and senior management level are an indicator of alterations to a company’s culture; which enhances its chances of a DPA.
A company must also know how to emphasise certain factors that may tilt investigators towards a DPA.
While Rolls-Royce was being investigated, it reported to the SFO that it employed 50,000 people and that any prosecution of the firm may harm those jobs and many others in the wider UK defence industry and its supply chain.
Not every firm under investigation can make such claims. But they may well have their own set of circumstances that can be explained and emphasised in order to convince investigators of the value of a DPA.
If we look at the case of Barclays, it illustrates what we are saying. It has been under investigation by the SFO and now both the bank itself and four former executives have been charged in relation to a Qatari refinancing deal made in 2008.
Barclays has not admitted any wrongdoing and has unsuccessfully challenged the SFO’s right to see 100,000 documents. If you do not admit the wrongdoing, you cannot obtain a DPA.
The bank may feel it is in the right and should challenge the SFO allegations, which is understandable. But the DPA offers a number of benefits to a company suspected of wrongdoing – and it would be foolish to act in a way that prevents it becoming a realistic option.