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Volume XI, Number 205

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UK’s Serious Fraud Office Issues Guidance on Deferred Prosecution Agreements

Although we may be familiar with the concept of deferred prosecution agreements (DPAs) in the United States, they are not solely a U.S. construct. The United Kingdom’s Serious Fraud Office (SFO), for example, first announced its plans to introduce DPAs as part of case resolutions in October 2012, although its first DPA was not utilized until 2015. Since then, the U.K. SFO has entered into eight DPAs.

So far, deferred prosecution agreements in the U.K. have been used in cases involving conspiracy to defraud, money laundering, fraud, bribery, and failure to prevent facilitation of foreign tax evasion offenses.

As the use of DPAs has increased by the U.K. SFO, it has taken steps to provide more transparency for companies interested in cooperating with the U.K. SFO during investigations. The agency noted the benefit of DPAs as a “[v]aluable 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.”

So, what does corporate cooperation look like? At a minimum, key indicators of cooperation as noted by the U.K. SFO include:

  • Self-disclosure, within a reasonable time, of wrongdoing not already known to the prosecutor

  • Taking remedial actions including, where appropriate, compensating victims

  • Preserving available evidence and providing it promptly in an evidentially sound format

  • Identifying relevant witnesses and disclosing their accounts and the documents shown to them

  • Where practicable, making witnesses available for interview when requested

  • Providing a report in respect of any internal investigation including source documents

  • Waiving privilege over any privileged materials, though the company can neither be compelled to waive privilege nor penalized for not waiving privilege

A decision as to whether to enter into a DPA is not based solely on the cooperation of the company, however. As a threshold matter, the prosecutor must also satisfy both the evidential test and the public interest test. An overview of this two-prong requirement will be discussed in our next update.

© 2021 BARNES & THORNBURG LLPNational Law Review, Volume XI, Number 167
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About this Author

Tabitha K. Meier, Barnes Thornburg, Indianapolis, Corporate Law Attorney
Partner

Tabitha K. Meier is a partner in Barnes & Thornburg’s Indianapolis office, a member of the firm’s Litigation Department and co-chair of the Compliance Practice Group. Ms. Meier’s national and international practice is focused on compliance, specifically in advising companies on the development and deployment of effective compliance programs in their businesses, including risk assessment, training, policies and procedures, and investigations – all informed by a thorough understanding of the business environment.

317-231-7326
John Heinz Indianapolis Lawyer Barnes and Thornburg LLP
Associate

Dedicated to providing top-notch representation for his clients, John Heinz advises and advocates for a range of litigation clients.

John assists with legal research, analysis and virtually all forms of litigation-related drafting, including briefs, motions and discovery. 

Before joining the firm full-time, John was a law clerk with Barnes & Thornburg and with the Indiana State Public Defender’s office. He also held internships with the Marion County Public Defender’s Office, the Marion County Prosecutor’s Office...

317-231-6403
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