The Bribery Act, due diligence and DPAs

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Mark Mulholland QC and Heather Phillips consider the lessons learned from the UK’s first DPA – and find that early reporting and a culture of compliance should be at the fore when the commercial long-term future of an organisation is at stake

A new mechanism of deferred prosecution agreement (DPA) was introduced in February 2014 by s 45 and Sch 17 of the Crime and Courts Act 2013 (CCA 2013), whereby an agreement may be reached between a designated prosecutor and an organisation facing prosecution for certain economic or financial offences. 


In short form, criminal proceedings are instituted but then deferred on agreed terms subject to judicial approval. The terms may include the payment of a financial penalty, compensation, payment to charity and disgorgement of profit along with implementation of a compliance programme, payment of costs, co-operation with related investigations and monitoring (CCA 2013, Sch 17, para 5). If, within a specified time, the terms of the agreement are met, proceedings are discontinued; should the party default, the agreement can lead to the suspension being lifted and the prosecution being pursued.

Standard Bank

The first DPA in the UK was formally approved by Lord Justice Leveson recently in SFO v Standard Bank PLC (now ICBC Standard Bank PLC) sitting at Southwark Crown Court (30 November 2015, Case No U20150854). Standard Bank was accused of failing to prevent bribery contrary to s 7 of the Bribery Act 2010 (BA 2010). A former sister company of Standard Bank, Standbic, engaged a third party, Enterprise Global Market Advisors Ltd (EGMA) in which the Commissioner of the Tanzanian Revenue Authority (and thus a government official) was chairman and significant shareholder. Due diligence checks in respect of a $6m USD payment to EGMA, which would generate significant transaction fees for the bank, were left to Standbic, over which Standard Bank had no interest, oversight, control or involvement. The Serious Fraud Office (SFO) alleged that this payment was intended to induce Tanzanian Government officials to show favour to Standard Bank and Stanbic Tanzania in respect of a $600m private placement by the Government of Tanzania.

Suspicions were raised following the withdrawal of large cash amounts from a bank account following the payment of a transaction fee in March 2013. The London head office subsequently self-reported, commenced an internal investigation and co-operated fully with the SFO.

The SFO considered the case to be suitable for a DPA and agreed to suspend the indictment for a period of three years, following which the prosecution would be discontinued if a number of conditions were fulfilled by the bank. The conditions included: (i) payment of compensation of US$6m plus interest of US$1,046,196.58; (ii) payment of a financial penalty of US$16.8m (iii) payment of costs of £330,000; (iv) disgorgement of profit of US$8.4m; (v) Standard Bank agreeing to commission and submit to, at its own expense, an independent review of its existing internal anti-bribery and corruption controls, policies, and procedures regarding compliance with the BA 2010 and other applicable anti-corruption laws; and (vi) the past and future co-operation of Standard Bank (subsequently specified in the agreement).

The ‘co-operation clause’ is not to be glossed over as the agreement comes with a sting in the tail for those who pay it lip service only. The DPA contained an important caveat permitting fresh proceedings to be instituted even after the expiry of the agreement if the SFO believes that during the course of negotiations for the DPA Standard Bank provided inaccurate, misleading or incomplete information to the SFO and Standard Bank knew, or ought to have known, that the information was inaccurate, misleading or incomplete.

Statutory framework

Schedule 17 to CCA 2013 and Part 11 of The Criminal Procedure Rules 2015 (CPR 2015) prescribe the detail of this scheme. In short, by a DPA, the organisation (a body corporate, a partnership or an unincorporated association, but not an individual) may reach agreement with a designated prosecutor such as the Director of Public Prosecutions or the Director of the SFO, who in each case, must act personally. Until approved by the court, that agreement is merely provisional and in effect non-binding.

Every agreement must contain a statement of facts relating to the alleged offence which may include admissions made by the organisation and must specify an expiry date upon which it will cease to have effect if not terminated by a breach (CCA 2013, Sch 17, para 5). The designated prosecutor and any organisation considering entering into a DPA are assisted by the Code of Practice (CoP) issued by the SFO and the Crown Prosecution Service in relation to the general principles to be applied along with the disclosure and use of information as required (CCA 2013, Sch 17, para 6).

The obvious benefit for the organisation is the avoidance of formal prosecution involving lengthy proceedings with associated negative publicity throughout and the inherent risk of criminal conviction. Arguably an attractive carrot for the organisation prepared to grasp the nettle at an early stage. For the SFO, it provides an effective means of expediting the investigation and ensuring the proceedings conclude with a positive outcome. Once a DPA is successfully completed, in the face of full transparency, the Prosecutor must formally discontinue the proceedings and fresh proceedings cannot be instituted for the same offence (CCA 2013, Sch 17, para 11). In pragmatic terms an organisation that admits wrongdoing and complies with the agreed sanctions will avoid a corporate conviction which is especially attractive for those tendering for global or government contracts.

It is to be expected that DPAs will be a useful tool in the armory of the SFO, with co-operation being the catalyst in determining whether bribery at corporate level is suitable for such a disposal. It is not without coincidence that the first case taken involved an unequivocal demonstration of such co-operation.

Procedural stages

The self-reporting mechanism is encouraged as the route most likely to attract a DPA. Upon receipt of the reported wrongdoing, consideration will be given to the options for proceeding. For the SFO to consider disposal by DPA, transparency and full compliance from the organisation will be a prerequisite. If acceptable, the body will be invited to engage in DPA negotiations and if terms are reached that are capable of agreement, a formal letter of invitation for a DPA is furnished by the SFO. Once terms are subsequently formalised, the proposed DPA and draft indictment is put before the court, in camera, for provisional judicial approval under CCA 2013, Sch 17, para 7. This ‘para 7 application’ is a necessary precondition whereby the judge considers if entering into a DPA is ‘likely to be in the interests of justice’ and whether the proposed terms are ‘fair, reasonable and proportionate’ as pursuant to para 7 of Sch 17.

Unlike the position in the United States where the DPA scheme has operated since 1999 without resort to judicial scrutiny, in the UK it is the court that examines the proposed agreement. Having obtained the necessary preliminary approval from the court, the prosecutor will subsequently apply to the court for a final declaration, where the matter is then brought back before the court by way of formal application under para 8 of Sch 17. At that point, the indictment is formally laid and immediately suspended upon the terms of the DPA (including penalty) being made an Order of the court. While the hearing at this final stage can be held in private, if the court is to approve the DPA it must do so and give its reasons in open court.

Any financial penalty must be broadly similar to a fine which the court would have imposed; therefore it appears no ‘credit’ by way of mitigation or ‘discount’ is necessarily given for self-reporting and full co-operation. This rather, is a prerequisite to qualify for eligibility at the outset.

Once a DPA is successfully completed by way of fulfillment of the terms, the prosecutor must then formally discontinue the proceedings and fresh proceedings cannot be instituted for the same offence. In effect, a corporate version of a deferred sentence. Should the organisation default, however, the Damoclean sword is never far away and the prosecution may resume. Given that the preliminary hearing is expressly kept out of the public sphere until the agreement receives judicial approval, the integrity of any subsequent prosecution is protected.

The overarching judicial scrutiny, justified as being in the ‘public interest’, was a key feature of the Standard Bank judgment; Leveson LJ observing:

“... it is important to emphasise that the court has assumed a pivotal role in the assessment of its terms. That has required a detailed analysis of the circumstances of the investigated offence, and an assessment of the financial penalties that would have been imposed had the Bank been convicted of an offence. In that way, there is no question of the parties having reached a private compromise without appropriate independent judicial consideration of the public interest: furthermore, publication of the relevant material now serves to permit public scrutiny of the circumstances and the agreement.”

Self-reporting and the DPA

Self-reporting is no guarantee that a prosecution will not follow. Each case will turn on its own facts and the SFO guidance on self-reporting must be viewed through the prism of full disclosure. In cases where the SFO does not prosecute a self-reporting organisation, the SFO nevertheless reserves the right: (i) to prosecute it for any unreported violations of the law; and (ii) lawfully to provide information on the reported violation to other regulatory bodies (including foreign regulatory authorities such as the US Department of Justice & Securities and Exchange Commission).

The question of self-reporting may arise once there has been a thorough internal investigation by an independent third party which will encompass staff interviews and a document trawl. A key question that does arise is ‘should these accompany the self-report’? This can provide the obvious dilemma for the organisation as issues of legal professional privilege will attach – the Standard Bank DPA did include a term which excluded legally privileged documents or other legal protection against disclosure at para 10 of the agreement, whether such terms are present in future agreements remains to be seen. The ongoing legal battle between Barclays Bank and the SFO as part of its investigation into Barclays’ £5.8bn emergency cash call at the height of the financial crisis may shed some light in due course. In the meantime, somewhat contentiously, the view of the SFO is that all such material is disclosable. This will have an impact, not least, on whatever steps a corporate entity will seek to take regarding any internal investigation and creates no shortage of challenges for legal advisers.

David Green, Director of the SFO, has stated that only companies that fully co-operate in investigations would qualify for a resolution by way of the DPA scheme. In real terms full co-operation may arguably include a waiver to all things privileged, including the product of any internal fact-finding review. Ironically this may prove a disincentive for the most culpable to come forward. In Standard Bank, Leveson LJ sent out a clear message to those thinking along these very lines, when he made the telling observation ‘neither should it be thought that, in the hope of getting away with it, Standard Bank would have been better served by taking a course which did not involve self-report, investigation and provisional agreement to a DPA with the substantial compliance requirements and financial implications that follow’ (SFO v Standard Bank (Approved Judgment, para 66).

Indeed, no sooner had the first DPA been approved, than the first admitted offence under s 7 of the Bribery Act was confirmed by the SFO. To reinforce the point regarding co-operation and culpability, it is believed that this may result in the first prosecution under s 7. (Sweett Group was the subject of an investigation following allegations published in the Wall Street Journal of bribery by a former employee to win contracts involving the construction of a hospital in the Middle East. The company said it expects a fine, ‘the quantum of which cannot be ascertained at the present time’.)

Both instances provide an important lesson to corporate organisations, particularly those on a global scale, that the issue of due diligence cannot be left to third parties. Clear policies and effective enforcement must be at the centre of any corporate governance agenda.

Conclusion

The court in Standard Bank felt that it was ‘obviously’ in the interests of justice that the SFO could investigate the circumstances in which a UK registered bank acquiesced in an arrangement (however unwittingly) which had ‘many hallmarks of bribery on a large scale’ and which both could and should have been prevented. The swift self-report was a key factor in that being possible. The Bank had also co-operated fully and from an early stage allowed for a thorough investigation to be conducted, so that by the time it reached court there had already been improvements in its bribery and anti-corruption policies and procedures. The lesson must be that if embarking on the DPA route, early reporting and a culture of positive compliance should be at the fore when the commercial long-term future of the organisation may be at stake.

Contributors Mark Mulholland QC & Heather Phillips BL

The ‘interests of justice’ test

In the judgment following the preliminary application, Leveson LJ provided an analysis of the interests of justice considerations expressly making clear that irrespective of the terms of the DPA, it must be in the interests of justice to proceed in this manner as opposed to prosecution. At the forefront of the material factors to consider were the following:

  1. The more serious the offence, the more likely it is that prosecution will be required in the public interest and the less likely it is that a DPA will be in the interests of justice. In Standard Bank no allegation of knowing participation in an offence of bribery was alleged either against Standard Bank or any of its employees; rather the offence was limited to an allegation of inadequate systems to prevent associated persons from committing an offence of bribery.
  2. ‘Considerable weight’ is to be attached to prompt reporting to the authorities. Adopting a genuinely proactive approach, self-reporting that otherwise may go undetected and the extent to which the prosecutor had been involved are all to be taken into account. Of course the weight given to an organisation’s self-report depends on the totality of information that it provides to the prosecutor (CoP, para. 2.9.1). Co-operation includes identifying relevant witnesses, disclosing their accounts and the documents (para. 2.8.2 (i)). Where practicable it will also involve making witnesses available for interview when requested.
  3. The extent of any history of similar conduct involving prior criminal, civil and regulatory enforcement actions against the organisation are relevant (para. 2.8.2 (ii)). Of significance was the fact that Standard Bank had no relevant previous convictions nor subject to any other SFO investigations, albeit it had been subject to regulatory enforcement action by the FCA.
  4. Agreement to follow a risk mitigation programme, such as implementing a corporate compliance programme to address deficiencies in place at the relevant time of the offence or at the time of reporting, and any improvement that has occurred in the intervening period is of considerable import (para 2.8.2 (iii)). After the FCA proceedings, Standard Bank was required to follow a 'risk mitigation programme' and undertake significant actions in order to offer effective remedies to the deficiencies that were identified during the investigation. Consequently, the FCA commissioned a review of the effectiveness of Standard Bank’s remedial actions under s 166 of the Financial Services and Markets Act.
  5. Whether the organisation in its current form is effectively a ‘different entity’ from that which committed the offence, weighs in favour of a proposed DPA being in the interests of justice. Albeit not a pre condition. In February 2015, ICBC acquired a 60% majority shareholding in Standard Bank and, following the majority share acquisition, a new board was appointed. The majority were new appointments.

In practical terms, the ‘principles judgment’ should be the charter for all practitioners asked to advise their corporate clients at the point of self-reporting with one eye to resolution by way of DPA.

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Heather Phillips BL

Heather is a member of the Bar of Northern Ireland, practising in the criminal defence field with experience in areas of fraud, financial crime and environmental crime.

Mark Mulholland QC

Mark is a member of the Bars of Northern Ireland, Ireland and England and Wales, with experience in areas of white collar crime, serious fraud and terrorist related offences.