A willingness to waive legal professional privilege will boost an erring company’s chance of reaching a deferred prosecution agreement (DPA) rather than criminal prosecution, the Serious Fraud Office has revealed. The advice appears in a new guidance chapter published today which attempts to lift a veil on the agency’s approach to offering and negotiating DPAs.
Eight DPAs have so far been entered in to since 2014, when they were enabled for certain financial offences by the Crime and Courts Act 2013.
According to the new guidance, a company’s cooperation is a key factor for the SFO when deciding whether to enter into a DPA. This could include waiving privilege over any LPP material – though the guidance notes that a company can neither be compelled to waive privilege nor penalised for refusing.
Other factors in favour of deferred prosecution include a lack of history of offending conduct, the existence of a ‘proactive corporate compliance programme’ and where the offending ‘represents isolated actions by individuals, for example by a rogue director’.
The guidance notes that secrecy is central to the process: the fact that negotiations are taking place must remain confidential as well as material provided by both parties.
‘No company is entitled to be invited to enter DPA negotiations, and an invitation to enter negotiations is no guarantee that a DPA will be offered,’ the guidance warns. ‘A decision may still be made to prosecute should negotiations fail.’
Financial penalties ‘must be broadly comparable to the fine that a court would have imposed on conviction for the alleged offending following a guilty plea’.
Lisa Osofsky, SFO director, said: ‘Publishing this guidance will provide further transparency on what we expect from companies looking to co-operate with us.
‘DPAs are a valuable tool in the fight against serious fraud, bribery and corruption, capable of not only punishing corporates for criminality but also making sure the company rehabilitates and becomes a better corporate citizen. This helps us foster a business environment where everyone plays by the rules, which can only benefit UK plc.’