Robert Barrington, Executive Director of Transparency International, has written to David Green at the SFO warning that DPAs, while a useful tool that TI supports must nevertheless be used properly, so as not to become a “soft option” for those guilty of corruption. TI is concerned that discounted DPA settlements will give that impression.
The letter expresses TI’s concern that the interests of justice have not been served in the Rolls Royce DPA, in the absence of any prosecutions of individuals. It says that, in general, individual prosecutions should be pursued regardless of any decision that a DPA is the appropriate way to proceed for the corporate. It also suggests that victim impact should be a key deciding factor in the DPA deliberation and says that transparency and independence in investigative decision making need improving. For example, TI thinks that there should be more direct mention of intent to prosecute individuals, and better transparency (again, taking the Rolls Royce example) of the impact and nature of debarment.
The letter also notes the current opacity of costs calculations, and criticised the fact that no Rolls Royce senior executives were present in court and that the company’s own long-standing monitor was allowed, effectively to act as guarantor that its culture was improving.
Finally, it highlighted concerns that:
- some companies are too big to prosecute, or SFO thinks it is in the national interest not to do so
- the discounting threshold is too great and not transparent
- it is impossible to tell whether immunity has been granted to any individual (and immunity should not be a trade-off for a company’s cooperation)
- SFO has sent the message that self-reporting is not a necessary pre-cursor to a DPA and
- there is confusion over what counts as a breach of a DPA.
David Green responded to the letter, saying (among other things), that individual prosecutions have resulted in two of the four DPAs agreed to date, with investigations going on in a third.