With the SFO laying down tough conditions to those seeking a deferred prosecution agreement (DPA), Aziz Rahman examines what companies need to do to have a chance of securing one.
The Serious Fraud Office (SFO) has made it clear that it isn't feeling generous.
In a hard-hitting but illuminating speech, Camilla de Silva, the SFO's Joint Head of Bribery and Corruption, made it clear that deferred prosecution agreements (DPA's) would not be given out to each and every company seeking one.
She chose an address at a conference of financial experts to emphasise that a DPA will not be appropriate in every case and that the alternative, where there is evidence of criminal conduct, is prosecution. According to her, there will be little or no chance of a DPA for those who do not self-report, offer little or no genuine cooperation with an SFO investigation and show no real appetite for changing working practices. Her message is clear: if those boxes aren't ticked, there will be no DPA.
This is important, as DPA's are likely to be more common in the future.
DPA's may be a relatively recent arrival to the UK, having been introduced under the provisions of Schedule 17 of the Crime and Courts Act 2013; which made them available to the Crown Prosecution Service (CPS) and the Serious Fraud Office (SFO).
But they are far from a novel concept. The US has had DPA's since the 1990's. In January, the Geneva-based private banking unit of HSBC agreed to pay 300 million euros to settle allegations it had helped clients evade taxes and launder money. This was France's first deferred prosecution agreement (DPA). It is unlikely it will be the only one, as a law passed in December 2016 incorporated DPA's into the French legal system.
As we write this, the Singapore government is considering introducing a DPA regime; having announced its intentions in January. Last year saw Australia indicate its preference for the introduction of DPA's. Its government published a 21-page document, "Improving Enforcement Options for Serious Crime, A Proposed Model for a Deferred Prosecution Agreement Scheme in Australia'', that was sent out for public consultation.
It is likely, therefore, that many more in business may need to know how to obtain one.
A DPA is an agreement reached between a prosecutor and an organisation that could be prosecuted. It is finalised under the supervision of a judge and allows a prosecution to be suspended as long as the organisation meets certain specified conditions; such as the payment of fines or compensation or major changes to working practices. If the conditions are met, there is never a prosecution. Failure to meet the conditions will led to prosecution.
But a DPA will only be offered if the SFO believes a company deserves one. Towards the end of her speech outlining the requirements for a DPA, Camilla de Silva said: "Don't be tempted to go down the "impression of co-operation" route, as we will see through that.'' The issue, therefore, is how should a company conduct itself in order to be offered a DPA?
The SFO will not be offering DPA's in what de Silva called "cases of a late conversion to the joys of co-operating.'' She elaborated by saying that a DPA can be a reward for openness. The sooner a company self-reports and the more open it is with SFO investigators, the greater the possibility of a DPA.
A company reporting its own wrongdoing has a greater chance of a DPA; especially if it has taken that step as early as possible. In the UK's second DPA – the case referred to as XYZ – the judge remarked on the swiftness of the self-reporting and stated that such openness should be of benefit to the company.
Self-reporting, however, must not be seen as a simple, one-off escape route from prosecution. The way it is done and the subsequent negotiations with the SFO have to be overseen by those with legal expertise and experience of such situations.
This is because even self-reporting could be seen by Ms de Silva and her colleagues as that "impression of cooperation'' she condemned so strongly.
Investigation and Cooperation
If any cooperation with the SFO is not to be seen as a sham by investigators, much will depend on how much genuine assistance a company gives to an investigation; however early it self-reports.
The amount of work a company has undertaken on an internal investigation, how much access to its findings it gives investigators and the quality and quantity of the records of such efforts can all be factors in determining whether a DPA is granted. No DPA will be offered if the SFO feels that it has not been given all the information it needs. And a DPA is unlikely if the SFO believes an internal investigation has tipped off potential suspects, prompted the deleting of valuable potential evidence or did not, as de Silva put it, go "as high up the corporate food chain as possible''.
It is worth noting here that Rolls-Royce did not report its bribery in far-flung countries and yet it obtained a DPA. The SFO found out about the company's bribery from a third party. Yet Rolls-Royce then offered all possible cooperation and reported wrongdoing that the SFO had not known about. The DPA settlement even referred to the "extraordinary cooperation'' the company offered the investigation. As a case, it emphasises the value of genuine cooperation in securing a DPA.
Co-operation, however, will not be enough, on its own, to obtain a DPA. In her speech, de Silva explained that a company must make genuine reforms to the way it works. This includes removing senior staff who were involved in the wrongdoing or who turned a blind eye to it. All DPA's granted so far in the UK have come after the companies under investigation removed such staff.
No DPA will be offered if a company cannot demonstrate that it has made comprehensive changes. In obtaining its DPA, Rolls-Royce devised tougher anti-bribery measures, revised its ethics and compliance procedures and examined its due diligence, activities with third parties and risk assessment The DPA settlement noted that Rolls-Royce is "no longer the company that once it was'' – a clear indicator it had reformed itself.
Self-reporting, internal investigation, cooperation with the investigating authority and reform are all factors which the SFO appraises.
What de Silva did not touch upon in her speech, however, is negotiation. The factors we have covered here are vitally important. But if a company does not, for example, self-report at the right time or in the right way, or fails to properly communicate its willingness to be totally open with the authorities, it will place itself at a disadvantage.
If it does not make clear just how thorough – and carefully carried out - its internal investigation was or misses opportunities to emphasise the extent and appropriateness of any changes it has made, it is reducing its chances of obtaining a DPA.
A company's explanation of how it met the criteria outlined by de Silva and how it emphasises its belief in the need to meet them can be important. Other factors, such as the effect a criminal prosecution may have on the company – or the industry it is in – or mitigating circumstances that led to the wrongdoing can also be voiced.
But they must be articulated in a way that will not alienate the investigators; which is why it is a task best left to those who deal regularly with the SFO.
The SFO knows what it wants from companies who seek a DPA. Those companies need to know how to meet the SFO's requirements – and communicate them in the most appropriate way. It is a matter that calls for tact, diplomacy and the art of negotiation.
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