White collar lawyers prepare for introduction of new SFO powers
A type of plea bargain that will radically alter City-based white collar partners' dealings with the Serious Fraud Office (SFO), will come into effect at the end of this month. Deferred prosecution agreements (DPAs), which are heavily used in the US, allow self-reporting companies to strike a deal with the SFO to pay a fine rather than face the uncertainty of a criminal prosecution.
February 04, 2014 at 04:39 AM
3 minute read
A type of plea bargain that will radically alter City-based white collar partners' dealings with the Serious Fraud Office (SFO) will come into effect at the end of this month.
Deferred prosecution agreements (DPAs), which are heavily used in the US, allow self-reporting companies to strike a deal with the SFO to pay a fine rather than face the uncertainty of a criminal prosecution.
In the last few days, the SFO confirmed it will have the power to use DPAs from 24 February, and is due to publish guidance on how it plans to use the prosecution tool.
Sources told Legal Week they expect the SFO will use its new powers on a number of open cases, creating a buzz of anticipation among white collar partners advising clients on potential settlements.
"We believe that the SFO will be keen to be seen to be making use of DPAs as soon as possible," commented Joanna Ludlam, co-head of Baker & McKenzie's compliance and risk group.
"We expect to see a DPA between the SFO and a corporate defendant very shortly after DPAs become available for use."
Alastair Graham, a partner at Mayer Brown, added: "If the SFO listens to the urging of politicians the guidelines are likely to favour prosecutions, tough enforcement and heavy sentences.
"But what we really need now is guidance on how the SFO will operate under this new regime since its implementation is imminent and if US practice is anything to go by, likely to be very significant."
DPAs – falling under Schedule 16 of the Crime and Courts Bill – were passed into law in April last year.
White collar partners said DPAs had been brought in to help prosecutors bring bribery charges against individuals in particularly complex cases.
"In the US, critics of the DPA mechanism have pointed out that the lack of close judicial oversight and the dearth of contested corporate cases has meant that US prosecutors have, in effect, been creating their own case law under the FCPA," commented Covington & Burling white collar partner Robert Amaee, who previously headed the anti-corruption and proceeds of crime divisions of the SFO.
"The requirement that there be judicial involvement from an early stage in the discussions has been built into the UK model, in part as a response to such criticisms. It remains to be seen to what extent judges will involve themselves in the minutiae of the process, and the details of discussions between prosecutors and the companies."
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