October 29, 2020
On October 23, 2020, the UK Serious Fraud Office published a new chapter from its internal Operational Handbook, which it describes as “comprehensive guidance on how we approach Deferred Prosecution Agreements (DPAs), and how we engage with companies where a DPA is a prospective outcome.”
At the time of its publication, the Director of the SFO, Lisa Osofsky, remarked, “Publishing this guidance will provide further transparency on what we expect from companies looking to co-operate with us.” Director Osofsky’s full remarks are here: https://www.sfo.gov.uk/2020/10/23/serious-fraud-office-releases-guidance-on-deferred-prosecution-agreements/.
The 2020 DPA Guidance (“the Guidance”) is here: https://www.sfo.gov.uk/publications/guidance-policy-and-protocols/sfo-operational-handbook/deferred-prosecution-agreements/.
In Director Osofsky’s remarks, it is worth observing that she states “DPAs require the company to admit to the misconduct, pay a financial penalty and agree to adhere to conditions set out by the prosecutor to ensure future co-operation and compliance.”
In fact, the underlying statute that created DPAs is clear that a party need not admit guilt and the new Guidance, when addressing the content of the Statement of Facts, also makes plain it is not necessary. There has therefore been no change in the law or the SFO’s requirements with respect to completing a DPA.
The Guidance contains very little new content compared with what is already set out in the DPA Code of Practice (published in January 2014), which is referenced almost 100 times in the Guidance. It should not be forgotten that the DPA Code of Practice remains in force and is the lead document for consideration, with its publication and consideration required by law and it having been laid before Parliament.
The commission of a further serious offence, let alone the suspicion of one during the term of a DPA, would not amount to a breach of a DPA without an express term to that affect. To date, no DPA has contained such a term. In most instances, it would be impractical given the length of time it typically takes to investigate and prosecute new cases. By the time the SFO established that an offence had been committed, the DPA will likely have expired. Any breach proceedings in respect of the DPA must commence during the term of the DPA. A term that would make it possible to breach a DPA in the event of an unproven suspicion would arguably not be fair, reasonable and proportionate.
Self-reporting features in a non-exhaustive list of public interest factors in the DPA Code of Practice that point in favour of a DPA instead of prosecution. Each of the specified public interest factors along with others that might be case-specific are to be balanced by the prosecutor in exercising their discretion whether to conclude a case by way of a DPA. It has always been the case that self-reporting is not essential, albeit a factor that will carry considerable weight. This was affirmed in the January 2020 Airbus DPA where the court said “…there is no necessary bright line between self-reporting and co-operation.” If it were unclear, the Guidance now makes this plain at footnote 15, which provides, “[t]he failure of a Company to self-report is not a bar to DPA negotiations per se but must be considered as a factor when assessing whether a DPA is in the public interest.” 
The Guidance also makes clear that a self-report does not have to be immediate by stating, “Voluntary self-reporting suspected wrongdoing within a reasonable time of those suspicions coming to light is an important aspect of co-operation.” This mirrors the language in the DPA Code of Practice, so it also does not mark a change in policy.
The Guidance does not materially assist companies to understand what the SFO expects in terms of co-operation beyond what was previously published. Those aspects of the Guidance that are not already in the DPA Code of Practice are found in alternative guidance or in prior DPAs, are matters of procedure addressed specifically to prosecutors or are light on detail.
Consistent with Director Osofsky’s commendation of the SFO’s most recent DPA for having “real teeth,” the Guidance suggests that the SFO is considering seeking increasingly onerous terms in DPAs. The challenge for the SFO will be that, should it continue down such a track, the incentives that a DPA is designed to offer will be diminished, ultimately disincentivizing the co-operation they are designed to encourage.
 Crime and Courts Act 2013, Schedule 17, paragraph 5(1). See also DPA Code of practice, paragraph 6.3 which confirms guilt need not be admitted but the contents and meaning of key documents referred to in the Statement of Facts will require admission.
 “There is no requirement for formal admissions of guilt in respect of the offences charged on the indictment.” Guidance, section “Statement of Facts”
 Crime and Courts Act 2013, Schedule 17, paragraph 6.
 Such as the Director of Public Prosecutions’ “Guidance on the handling of cases where the jurisdiction to prosecute is shared with prosecuting authorities overseas,” (https://www.cps.gov.uk/publication/directors-guidance-handling-cases-where-jurisdiction-prosecute-shared-prosecuting ), “Annex A – Eurojust Guidelines For Deciding ‘Which Jurisdiction Should Prosecute?’”
and the “Agreement for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States of America.”
 Crime and Courts Act 2013, Schedule 17, paragraphs 7(1)(b) and 8(1)(b).
 At the time of writing there remains an unpublished DPA in respect of Airline Services Limited.
 See also Crime and Courts Act 2013, Schedule 17, paragraph 10.
 Crime and Courts Act 2013, Schedule 17, paragraph 9(1).
 DPA Code of Practice, paragraphs 2.6 and 2.8.
 See also SFO v Airbus SE, January 31, 2020 at paragraph 68.
 DPA Code of Practice, paragraph 2.8.2 i.
 Future Challenges in Economic Crime: A View from the SFO, Royal United Services Institute, October 8, 2020, (https://www.sfo.gov.uk/2020/10/09/future-challenges-in-economic-crime-a-view-from-the-sfo/).
This client alert was prepared by Sacha Harber-Kelly and Steve Melrose.
Mr. Harber-Kelly is a former prosecutor at the SFO and was appointed to lead the SFO’s engagement in the cross-governmental working group which devised the DPA legislative framework, and subsequently appointed to draft the DPA Code of Practice, which sets out how prosecutors will operate the DPA regime.
Gibson, Dunn & Crutcher’s lawyers are available to assist in addressing any questions you may have regarding these developments. If you would like to discuss this alert in detail, please contact the Gibson Dunn lawyer with whom you usually work, the authors, or any of the following members of the firm’s UK disputes practice.
Philip Rocher (+44 (0)20 7071 4202, firstname.lastname@example.org)
Patrick Doris (+44 (0)20 7071 4276, email@example.com)
Sacha Harber-Kelly (+44 (0)20 7071 4205, firstname.lastname@example.org)
Charles Falconer (+44 (0)20 7071 4270, email@example.com)
Allan Neil (+44 (0)20 7071 4296, firstname.lastname@example.org)
Steve Melrose (+44 (0)20 7071 4219, email@example.com)
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