SFO Secures Two Further DPAs

On 19 July 2021, the High Court approved two separate deferred prosecution agreements (the “DPAs”) between the UK Serious Fraud Office (“SFO”) and two UK-based companies (the “Companies”) for active participation in, and failure to prevent, bribery pursuant to sections 1 and 7 of the Bribery Act 2010 (read the SFO press release here). The DPAs relate to conduct which, according to the SFO, saw the Companies' "rolling use" of bribes to obtain UK contracts valued in the millions of pounds. The two cases have a shared Statement of Facts, however, this document, along with the judgment approving the DPAs and the DPAs themselves, has not been released yet due to reporting restrictions.

Preliminary hearings took place before Mrs Justice May sitting at the Royal Courts of Justice on 7 July 2021 and 19 July 2021, with the final hearing (listed as SFO v AB Ltd and CD Ltd) also conducted on 19 July 2021.

The key terms of the two DPAs include:

• an undertaking by a parent company of the Companies to support a comprehensive compliance programme;
• obligations to report to the SFO on compliance at regular intervals during the term of the DPA;
• a payment of £2,510,065 in total between the Companies, which comprises both the disgorgement of profits and financial penalties; and
• a term of two years for each DPA.

These are the second and third DPAs approved in 2021 following the settlement with Amec Foster Wheeler Energy Ltd earlier this month (find our recent briefing on this topic here). As has been the case in several previous DPAs, the Companies are said to have "fully co-operated" with the SFO. The SFO's press release notes that the Companies will continue to co-operate in related proceedings, presumably in relation to individuals allegedly involved in the conduct.

While no further details have been released, the SFO continues to emphasise the value of DPAs as a prosecutorial tool. Lisa Osofsky, Director of the SFO, emphasised that DPAs enable the SFO to punish "companies for their crimes" while also putting in place "measures which ensure that they will not flout the rule of law again." This is in line with the SFO's Annual Report for 2020-2021, published on the same day as the DPAs, which estimates the SFO's DPAs have delivered £1.6 billion to the public purse since 2014 (access the Annual Report here).

The DPAs only relate to the potential criminal liability of the Companies and do not address whether liability of any sort attaches to any current or former employee or agent of the Companies. Upon determining the issue of approval of the DPAs, the Court did not make findings of fact. No process took place by which the culpability of individual people was determined or assessed.

HSF continues to monitor the position and will issue a further detailed update once more information on these DPAs is available.