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Bribery Newsflash: SFO publishes their approach to plea bargains

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United Kingdom

Today sees the publication of the Code of Practice for the UK's Deferred Prosecution Agreement (DPA) system.

Today sees the publication of the Code of Practice for the UK's Deferred Prosecution Agreement (DPA) system.

DPAs will act as a form of plea bargain for companies, allowing them to avoid prosecution for corruption, fraud and other financial offences, if admissions are made, corrective action is taken, and a penalty is paid. Following Royal Assent for The Crime and Courts Act 2013, DPAs will be available from 24 February 2014.

The Code of Practice which was published today identifies the criteria which prosecutors will apply to select potential defendant companies who will be offered DPAs, the process for negotiation of DPAs, and the anticipated terms of DPAs.

The Code follows publication last month of Guidelines for Sentencing of corporate offenders, which will inform the level of financial penalty payable under DPAs.

We have prepared a short Q&A guide to DPAs for businesses.

Commentary

DPAs are set to transform the enforcement landscape for companies facing potential prosecution for financial crime.  They offer a mechanism for a contractual resolution of issues in exchange for a financial penalty.  We anticipate that they will become particularly common in Bribery Act cases, where companies face strict liability for the activities of their agents and others working on their behalf around the world.  For other financial crime offences DPAs may remain less common, as the offences require the "directing mind and will" of the company to commit the crime, which, in many cases, will be difficult for a prosecutor to prove.

The Code identifies that 'self reporting' by companies is a factor which would weigh in favour of a DPA being offered.  It is also clear from the Sentencing Guidelines that cooperation will significantly reduce potential fines.  It will be important for businesses to consider carefully how to proceed from the outset if issues are uncovered which indicate that potential criminal offences might have been committed.

Fieldfisher has helped shape the Code during consultation to ensure that the system of DPAs reflects the views of businesses.  We are pleased that the final version of the Code published today has taken on board a number of our comments, including clarification of the protection of legal professional privilege.

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