Deferred Prosecution Agreements: What Do We Know So Far?
(Source: UK Serious Fraud Office; issued July 01, 2014)
Speech by Ben Morgan, Joint Head of Bribery and Corruption, Serious Fraud Office,
At the seminar on DPAs and the UK Aerospace and Defence Industry

I'm going to cover two main points this morning that I hope will be useful for those of you who are interested in the [Deferred Prosecution Agreement, DPA] regime, be you substantive businesses or advisers to those businesses.

I will explain what, as far as the SFO is concerned, you need to do if a DPA is to be a potential resolution to an issue you discover. We have the Crime and Courts Act and we have the Joint Directors' DPA Code that are the foundation for this, but I am not going to read those out to you. I have always found that the best way to really understand something isn't to read about it - it's to do it.

And while we do not yet have any finalised DPAs, the regime is a central part of the thinking that is going on at the SFO at the moment when we deal with corporate suspects. So I will say something about how, in practice, we are applying the statute and its accompanying guidance to actual situations.

But before I do that, I want briefly to say something about why a DPA is worth considering.

It is not my job to try to persuade you to seek a DPA - that is a matter entirely for you and it is open to you to ignore that potential disposal of an issue and defend a prosecution instead. We are very comfortable with both scenarios, but the point of today is to concentrate on the DPA fork in the road as opposed to the adversarial prosecution fork in the road, so that's what I will concentrate on.

While my intention today is to encourage co-operation between you and the SFO, do remember that that only applies to those of you who choose the DPA fork in the road. For everyone else, remember we are ultimately a prosecutor and you can expect the bulk of our case load to be prosecuted in the usual way - the Director has made that entirely clear.

If I was back in my old job, advising a company that had become aware of a potential criminal incident, I would be asking myself these two questions:

1) Will the SFO ever find out? and

2) If they do, what would they really do about it anyway?

Those of you who follow what the SFO has to say about DPAs will know that the Director and our General Counsel have spoken about both of these points at length. I do not repeat what they have said today, although I do endorse it. Today I want to make just two new points to amplify that.

As for "will the SFO find out" the point is simply this - our intelligence capability is expanding and as is widely known, we are investing heavily in it. The Director has said that we are seeking to make use of the full range of investigative tools available to us, and I can say from personal experience that that is now moving to a new level in practice. Through our own capabilities, and in conjunction with our law enforcement and intelligence partners, we have access to and are using that full range of tools. That is potentially game changing for us, not only in respect of forensic recovery of things that have happened in the past, but also in respect of evidence of things happening right now - crime in action.

Judging whether we will find out has always been an exercise in balancing risk. My message for you is if you don't understand what that full range of investigative tools entails, you are not doing a proper balancing exercise - so you need to do some research on that, and have another think about your risk appetite. Refresh your assessment of what we're able to do and how that might affect you.

As for "the SFO won't do anything anyway", I have to acknowledge history - we have very few corporate convictions in our stable. But under the current Director's leadership I and others are expressly addressing that as a priority. Three points are worth making. (end of excerpt)

Click here for the full transcript, on the SFO website.


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