Deferred prosecution agreements (DPAs) are a relatively new concept in UK law. But they are becoming increasingly important as they offer a company an alternative to prosecution for corporate wrongdoing.
Rahman Ravelli is one of a select group of legal firms to have conducted DPA negotiations. Our expertise has been highlighted in the world’s most prestigious legal guides and has made us a logical choice for corporates who are looking for the strongest possible chance of avoiding prosecution.
A DPA involves the Serious Fraud Office (SFO) or Crown Prosecution Service (CPS) agreeing to suspend the prosecution of a company for a corporate crime, provided that it meets certain conditions. These conditions could be the payment of a fine or compensation, the removal of staff, changes to working practices or assisting with the prosecution of certain individuals. If these conditions are met for a set period of time, the company will not be prosecuted. But it will be prosecuted if it fails to meet them.
Obtaining and complying with a DPA can be of great value to a company because it avoids the cost and reputational damage that prosecution, trial and conviction can bring.
Seeking a DPA requires an intelligent and sometimes bold approach in negotiations with investigators. While a DPA has the benefit of avoiding a prosecution it is important that, when agreeing on one, the company takes every opportunity to put its case robustly.
The case of Tesco illustrates this. In 2017, Tesco admitted wrongdoing in relation to a multi-million-pound accounting black hole and reached a DPA with the SFO that saw it pay a fine of £129M. Yet all three directors that were charged with fraud in relation to this were cleared – meaning that Tesco had admitted wrongdoing for which nobody was ever found guilty.
It is not easy to obtain a DPA. This is why any company seeking one needs to be represented by those with experience and expertise in this emerging area of law. Experts with in-depth knowledge of how to challenge and, when necessary, negotiate with the SFO and CPS. Solicitors who are recognised nationally and internationally for knowing precisely how to conduct a case, how to manage discussions with the authorities and how and when to hold their nerve in the face of allegations. Rahman Ravelli’s solicitors have all these attributes.
You can read more in our guide: What A Company Needs To Do To Obtain A Deferred Prosecution Agreement.
The chances of a DPA being offered to a company will depend on factors such as whether it properly investigated the wrongdoing and if it self-reported it to the SFO. In such circumstances, the value of a properly-conducted internal investigation cannot be over-emphasised.
The extent to which a company cooperates with the SFO investigation and introduces measures to prevent any further offences from being committed will also affect the likelihood of a DPA becoming a reality.
Whether it be an investigation, self-reporting, cooperation with the SFO or introducing much-needed reforms, our solicitors know just how and when to carry out such activities in a way that will maximise the chances of a DPA being offered – and a conviction being avoided.
Our Lawyers have decades of experience in dealing with the SFO. And we put it to the best possible use for our clients.
A Deferred Prosecution Agreement (DPA) is a formal agreement between a prosecutor (in the UK, the Serious Fraud Office or Crown Prosecution Service) and a company under criminal investigation, whereby the prosecution is deferred for a defined period on agreed terms. If the company meets all the conditions of the DPA, the proceedings are discontinued at the end of the deferral period. DPAs are not available to individuals, only to companies and other organisations.
DPAs were introduced in the UK by the Crime and Courts Act 2013 and became operational from February 2014. The first UK DPA was entered into with Standard Bank plc in November 2015, approved by Lord Justice Leveson. Since then a series of major UK DPAs have been reached in cases involving LIBOR manipulation, bribery of foreign officials, and other forms of serious economic crime.
Common DPA conditions include payment of a substantial financial penalty (which typically reflects the gross gain from the relevant conduct), payment of the prosecutor's costs, disgorgement of profits, enhanced compliance programmes, independent monitoring of compliance, and full cooperation with investigations into associated individuals. Some DPAs also require the company to make compensation payments to those harmed by its conduct.
A DPA cannot take effect unless it has been approved by a Crown Court judge. The judge must determine that the proposed agreement is in the interests of justice and that its terms are fair, reasonable, and proportionate. There is a preliminary hearing in private and then, if the judge is satisfied, a public hearing at which the terms are announced. The court retains a supervisory role for the duration of the DPA and must also confirm the discontinuance of proceedings at the end of the deferral period.
If a company fails to comply with any condition of the DPA, the prosecutor can apply to the court to terminate the agreement. If the court is satisfied that there has been a material breach, the prosecution can resume. The previous admissions contained in the Statement of Facts agreed as part of the DPA would be admissible in any subsequent trial. This makes full and ongoing compliance with DPA conditions of critical importance throughout the deferral period.
A DPA is not a conviction — the prosecution is deferred rather than proceeding to a verdict. However, as part of the DPA process, the company agrees a Statement of Facts with the prosecutor that sets out the underlying conduct. These facts, while agreed for DPA purposes, contain admissions that could have consequences in civil proceedings and for associated individuals under investigation. The reputational implications of the publicly announced Statement of Facts are also significant.
Self-reporting — proactively disclosing potential criminal conduct to the relevant authority before an investigation is opened — is a significant factor in the prosecutor's decision whether to offer a DPA rather than pursue full prosecution. The SFO's approach emphasises cooperation and self-disclosure as key criteria for DPA eligibility. However, self-reporting should never be undertaken without specialist legal advice. The decision is irreversible and must be made with full knowledge of the evidence, the likely charges, and the realistic range of outcomes.
DPA negotiations are high-stakes, technically complex proceedings that will define the company's legal and reputational position for years. The financial penalty, the content of the Statement of Facts, the compliance obligations imposed, and the level of cooperation expected all require careful negotiation. Experienced DPA solicitors understand the SFO's expectations, can manage the negotiation to achieve the best possible terms, and will ensure that the company's position in related civil and regulatory proceedings is protected throughout the process.
