News & what's on - Written by on Tuesday, August 4, 2015 6:57 - 0 Comments

SFO Director means what he says…A letter from David Green CB QC: No “Get out of jail card for companies”

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david-bioJust over a week ago we opined that many fundamentally misunderstood the UK DPA regime in response to letters and an article which appeared in the Independent.

The Director of the SFO, David Green CB QC, agreed and we reproduce in full a copy of a letter which he sent to the Independent newspaper on Friday last week below.  Many would do well to read it.  He means what he says.

“I have read with interest the pieces by Robert Barrington and Paul Peachey (25 July) on deferred prosecution agreements (DPAs).

Whilst I fully recognise the concerns expressed, the scepticism and anxiety of both writers is premature and unfounded.

DPAs were introduced by the Crime and Courts Act 2013. They apply only to companies, and not to individuals. They originated in the USA, and Parliament adapted the model to suit the British context. Crucially, a judge must give permission for DPA negotiations to progress, and must certify later that the DPA is in the interests of justice.

At the end of the process, a statement of facts and the terms of the DPA will always be published.

Terms might include a fine, disgorgement of profits, compensation to victims, payments of costs, changes to governance, and the appointment of a monitor on the board. In no sense would a DPA be the product of a backroom deal; nor would it constitute a “get out of jail free” card for the corporate.

A DPA is designed to avoid, in appropriate circumstances, the collateral damage to the pensioners, shareholders, employees and others that can flow from the prosecution of a corporate. It is not the default preferred outcome for every case, but is most likely to be suitable for a company that has self-reported wrongdoing, co-operated with an investigation and made necessary amendments to its governance. Where a company receives a DPA, individuals will still be prosecuted if the evidence is available and it is in the public interest to do so.

I refute the suggestion that the SFO is likely to be “intimidated by powerful companies backed by big money and big law firms” or subject to “corporate bullying”. Our current caseload, which includes GSK, Rolls Royce, Barclays Bank and Tesco, surely gives the lie to this.

David Green QC

Director, Serious Fraud Office, London SW1″


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