Syedur Rahman, of business crime solicitors Rahman Ravelli, considers the questions that surround the DPA process.
The acquittal of three senior executives of Sarclad in a case brought by the Serious Fraud Office (SFO) means the agency has failed for a second time to secure prosecutions after reaching a deferred prosecution agreement (DPA) with a company.
Michael Sorby, Adrian Leek and David Justice were all cleared by a jury at Southwark Crown Court of taking part in a bribery plot for their former employer. The SFO had agreed a deferred prosecution agreement (DPA) with Sarclad in July 2016.
The SFO's failure to secure convictions against three of the company's former executives echoes the collapse of its case against three former Tesco executives over the supermarket giant's £250M accounting scandal. Like Sarclad, Tesco had admitted illegal activity and been granted a DPA – only for the individuals that were charged to be acquitted.
And earlier this year, the SFO dropped its investigation into Rolls-Royce with no individuals being charged. Even though the company admitted systemic bribery over a number of years and in various countries when it reached a DPA with the SFO in 2017, the SFO discontinued the investigation in February. In announcing the end of the investigation (and one into GlaxoSmithKline), SFO Director Lisa Osofsky talked of insufficient evidence to provide a realistic prospect of conviction and of the possibility of a prosecution not being in the public interest.
There seems to be a pattern in recent years where the company accepts culpability but then the individuals involved are tried and acquitted. This raises the question of whether companies should blindly accept DPAs or have a jury determine criminality.
The Sarclad case means that questions will again be asked over the integrity of the DPA process. The acquitted trio from Sarclad join the growing number of executives from companies that have admitted wrongdoing that have either been found to be innocent or who have never even had to face the courts.
Suggested reading: What A Company Needs To Do To Obtain A Deferred Prosecution Agreement written by Rahman Ravelli, one of a select group of legal firms to have conducted DPA negotiations.
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