On 8 July 2016 the Serious Fraud Office (SFO) secured court approval for its second deferred prosecution agreement (DPA) under the Bribery Act 2010. The DPA was entered into with a company anonymously referred to as XYZ Limited (XYZ). This case follows the first DPA, which was concluded with Standard Bank in November 2015.

It also follows shortly after the sentencing of Sweett Group plc, which was the first company to be convicted of the ‘corporate offence’ under Section 7 of the Bribery Act 2010. Comparing these three ‘corporate offence’ cases will provide essential guidance to companies faced with allegations of corrupt activity.

What is a DPA?

DPAs were introduced by the Crime and Courts Act 2013. A DPA involves a company reaching an agreement with a prosecutor under which the company is charged with a criminal offence but the prosecution proceedings are suspended, subject to the company’s fulfilment of a number of conditions over a fixed period of time (commonly two to five years). If a company breaches any of the conditions, the prosecution may be resumed.

UK DPAs are subject to substantive judicial scrutiny. In approving a DPA, the court must be satisfied that it is likely to be in the interests of justice and that the proposed terms are fair, reasonable and proportionate in the circumstances of the case.

Availability of a DPA

A DPA is only available to companies, partnerships and unincorporated associations which face prosecution for a criminal offence. They are not available to individuals. The main offences for which they are available are the typical white-collar offences of fraud, bribery and money laundering.

Oct-Dec 2016 issue

Burges Salmon LLP