Alun Milford has spoken on SFO’s use of deferred prosecution agreements for dealing with “certain co-operative and reformed corporate offenders”. He noted that SFO has now secured 4 DPAs, of which 3 have been published.
He drew a number of conclusions from the experience to date:
- that a DPA is not a rubber stamping exercise – the court’s role is an active one in which it scrutinises every aspect of the application for approval
- although the key consideration is the seriousness of the offence, the Rolls Royce example shows that even cases of the most serious criminality remain eligible for DPA treatment
- when considering whether the DPA would be “in the interests of justice”, the critical factors are co-operation and reform. It has been well-documented that Standard Bank and XYZ self-reported. While some commentators suggested the Rolls Royce case meant there was no need to self-report, SFO said it had little information to start with and so did in fact learn a lot from the company – and that the company’s cooperation meant it did bring many matters to SFO’s attention of which SFO would otherwise have been unaware. So it started “on the back foot” but its cooperation from that point was critical. Mr Milford stressed DPAs are unlikely to be available in cases where SFO knows most, if not all, relevant information before it approaches the company, nor if a company suddenly becomes cooperative just before SFO makes a charging decision
- that SFO accepted summary witness accounts in the Standard Bank case and interview memoranda for Rolls Royce. It will sometimes accept these types of evidence, but summaries will not always be good enough
He concluded by saying SFO is not interested in offering a DPA to a company it thinks will reoffend. Reform has been a key element in all DPAs to date. SFO wants to incentivise openness and not to punish innocent employees and others who may be affected by a prosecution.