JHA | Deferred Prosecution Agreements are here to stay

Deferred Prosecution Agreements are here to stay

April 5, 2019

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In a recent interview, the Director of the Serious Fraud Office (SFO), Lisa Osofsky, has given her support to the continued use of Deferred Prosecution Agreements (DPAs) as an effective tool in the fight against economic crime.

DPAs, which are essentially American-style corporate plea bargains, came into use in the UK in 2015.  They allow companies who admit wrongdoing to reach an agreement with the prosecutor, under the supervision of a judge.  That agreement allows the prosecution to be suspended for a defined period provided the organisation meets certain specified conditions, which usually include fines and monitoring, avoiding the additional damage a conviction would likely bring.

DPAs have come under criticism since their introduction in the UK as some say they enable companies to engage in and admit criminal conduct yet avoid prosecution.  Also there have been questions asked as to how effective a tool DPAs are to incentivise companies to self-report, as the UK lacks the strong deterrents to economic crime available in the US.

Osofsky claims that, since their introduction, DPAs have been effective in ensuring companies ‘clean up’ their act.  For example, in 2017, two major companies, Tesco and Rolls-Royce, agreed DPAs with the SFO, paying £129 million and £500 million respectively.

However, since Osofsky took over at the SFO in September 2018 a re-trial of former Tesco directors has collapsed and an investigation into individuals linked to the Rolls-Royce case was closed.  Despite this she claims that even if there is not enough evidence to prosecute individuals over the misconduct outlined in DPAs, they still serve an important purpose: ‘Corporates (are run) by individuals. But how do you reprimand, discipline, punish bad corporate behavior…? I see (cases against companies and individuals) as two very different things and I think the role of the DPA is to make sure that the company engages with prosecutors, comes forward and cleans up its act.’

Osofsky declined to comment on whether some of the cases she inherited will be closed in the near future.  These include investigations into, among others, Rio Tinto, Airbus, British American Tobacco, Tata Steel and ENRC.  She did however say that for cases to be impactful they need not involve large companies and that any company successfully prosecuted is progress.

JHA specialises in investigations, litigation and dispute resolution. We bring together leading barristers, solicitors and forensic accountants, to support clients at every stage and have deep experience of working with regulators including the SFO, FCA and HMRC.

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