Crispin Aylett QC of QEB Hollis Whiteman acted for the Serious Fraud Office today, 30 November, at the Royal Courts of Justice, in the first deferred prosecution agreement (DPA) case in the UK.
Lord Justice Leveson’s judgment in the case, which involves ICBC Standard Bank (formerly Standard Bank PLC) in respect of a transaction that took place in Tanzania in 2012-13, can be found here.
This morning the SFO and the Bank applied for, and were granted, final approval of the DPA.
Crispin commented, “This is a landmark moment for the SFO in the prosecution of alleged corporate fraud in this country. In appropriate cases, a Deferred Prosecution Agreement represents an opportunity for the saving of both time and money while still allowing a corporate defendant the opportunity to put right that which has gone wrong. The agreement that was reached in this particular case was the result of months of negotiation with sensible concessions being made by both sides. Indeed, Lord Justice Leveson described this case as 'the benchmark against which future such applications may fall to be assessed.'”
DPAs are used in the USA and were first permitted in the UK when the enabling legislation (the Crime and Courts Act 2013) came into force in February 2014.
A DPA is a voluntary agreement between a designated prosecutor (initially the Director of the SFO and the DPP) and either a body corporate, a partnership, or an unincorporated partnership. The effect of such an agreement is that, in return for compliance with certain requirements, including the payment of a financial penalty and the possible implementation of a compliance programme, the prosecutor will defer and ultimately discontinue the criminal prosecution of the organisation. DPAs are not available to individuals.
The United States have used DPAs and Non-Prosecution Agreements (NPAs) as a tool to tackle economic crime for a number of years; in the first six months of 2015 alone, the DOJ entered into five DPAs and 23 NPAs, and the SEC entered into one DPA.
It has been widely reported that a second DPA is close to being finalised.
The SFO instructed Sir Edward Garnier QC, Crispin Aylett QC (of QEB Hollis Whiteman) and Allison Clare.