News & what's on - Written by Barry & Richard on Sunday, July 26, 2015 11:55 - 1 Comment
Opinion: As UK DPA Mania & rumour mill sets in. Pundits fundamentally misunderstand the SFO & UK regime
Sky announces Barclays is in DPA negotiations. Barclays issues a statement: ”We are not in a position to comment on an ongoing legal matter, save to clarify that there has been no offer made of a DPA,” the bank said in a statement. It made no further comment.
Later the FT published a story about a rumour that the SFO has entered into DPA negotiations with two groups in the UK.
Irrespective of the truth of the FT story, and some sources have poured scorn over it, there are a couple of interesting things about it.
First, the fact of the story itself. The DPA Code sets out that negotiations must be kept confidential.
“Where P agrees to engage in DPA negotiations, the prosecutor should send P a letter setting out the way in which the discussions will be conducted. This letter should make undertakings in respect of:
i. the confidentiality of the fact that DPA negotiations are taking place;
ii. the confidentiality of information provided by the prosecutor and P in the course of the DPA negotiations.”
Which begs the question. Who’s talking if it’s true?
Second, and perhaps more interestingly, the stories provoked the inevitable backlash about DPA’s.
The Independent newspaper, one of many, went on the offensive.
This weekend in an article headlined “Justice for Sale” Paul Peachey of the Independent wrote:
“Big companies could soon escape prosecution for corporate corruption – by paying their way out” in an article the gist of which was to portray DPA’s as a method by which there might be one law for you and I and another for big corporates, too big to jail.
Meanwhile, Robert Barrington of Transparency International UK wrote in an article headlined “Companies paying to escape prosecution for alleged corruption is not right – they must be properly punished” the same paper the day before. In a thinly veiled threat Mr. Barrington wrote:
“…The SFO is itself in the spotlight. It is currently the subject of a Cabinet Office review as to whether it should exist. And while the SFO’s core budget should be in the region of £70m, it is less than half of that.
The SFO should not be manoeuvred or intimidated into a DPA by powerful companies backed by big money and big law firms that don’t co-operate with an investigation and use procedural technicalities to delay justice. While there will be legitimate reasons for the SFO to offer a DPA, corporate bullying is not one of them.“
Both misjudge the SFO Director and completely ignore the role of the UK judiciary in approving any DPA deal.
Like him or loathe him David Green SFO Director put clear blue water between himself and the former SFO Director Richard Alderman from Day 1.
Setting out his stall as prosecutor first and foremost Mr. Green prides himself in fostering a reputation and perception as a hard nosed prosecutor.
At least you know where you stand.
Mr. Green, whose tenure at the SFO ends next Spring unless his term is extended, can be expected to play it by the book when it comes to DPA’s. Expect any DPA to take into account OECD observations and to stick slavishly to the DPA rules.
Mr. Green has consistently flagged the requirement of the courts to approve any DPA. A safety valve which does not exist in the US and which makes the UK system superior to its US forebear.
Speaking recently Mr. Green cautioned that some may not appreciate how high the bar is to have a DPA approved with reference in particular to the importance of convincing a judge the proposed DPA is in the interests of justice.
Comment and press articles that do not listen to the SFO Director and which ignore the fundamental point that a UK judge has to be convinced miss a fundamental point of the UK DPA regime.