DPAs act as a plea bargain, and will allow companies to publicly admit past wrong-doing while paying penalties, undertaking internal reforms, or agreeing to external monitoring, in exchange for immunity from prosecution (unless they breach the terms of the DPA).
Barry Vitou, Partner and white collar crime expert at Pinsent Masons comments: “DPAs offer a better way of dealing with corporate wrongdoing and for businesses to resolve their criminal exposure. The present choice, either to prosecute, or not, is deeply unsophisticated.”
“The potential upside for ethical corporations is clear - hand over the bad apples themselves and corporates could avoid multi-million pound fines and public trials – with all the extremely damaging publicity that brings with it.”
“If DPAs can be implemented properly then the SFO could benefit from a dividend as businesses clear the skeletons out of the closet and come forward about past crimes that they have uncovered.”
Barry Vitou continues: “The SFO is under pressure to perform but to do that it needs the tools to do the job properly – DPAs should go a long way to help.”
“DPAs also have the advantage of penalising companies, enabling swifter restitution and rehabilitation, and reducing the risks to innocent directors, employees, and stakeholders.”
The Ministry of Justice hopes that DPAs will incentivise self-reporting for two reasons:
- The ministry believes they could prevent ‘forum shopping’ amongst guilty corporates. DPAs would remove the uncertainty companies face in the UK legal system after they have pleaded guilty to charges – judges can currently ignore plea deals made with prosecutors. Instead, some suggest that corporate defendants agree to a deferred prosecution deal in the US to avoid prosecution in the UK under double-jeopardy rules. This denies UK prosecutors the chance to secure restitution, compensation, or convictions.
- DPAs allow corporations to be punished for wrongdoing without risking the mandatory debarment from government contracts that prosecution can bring; most bribery offences result in mandatory debarment.