Deferred Prosecution Agreements (DPA) are appealing to both corporates and the Serious Fraud Office (SFO). They allow corporations to escape criminal prosecution by paying a fine and improving compliance. This avoids lengthy, expensive and often complicated trials, and can assist with the SFO’s publicly reported resourcing issues. However, of the nine DPAs concluded to date, none have resulted in successful prosecutions against individuals in these organisations, despite hefty fines being paid, significant costs being incurred and some level of wrongdoing often being agreed. Following the most recent release of a statement by the SFO that the trial against executives of Serco had collapsed – the judge directed the jury to acquit them after the SFO failed to disclose evidence to the defendants - questions are again being asked about the effectiveness of the DPA process and the fairness to individuals, who are often subjected to long investigations (the individuals in this case had an 8 year wait until trial) and may be collateral damage in the corporation’s pursuit of a deal with the SFO. This follows criticism in other cases, such as the Tesco case, where the individuals were publicly named in the DPA but cleared at trial. 

Given the lack of individual convictions, to date, there is a risk large companies may begin to regard a DPA as nothing more than "the cost of doing business” operating on an assumption that their executives are unlikely to face injustice.  However, this may in turn spur the SFO to seriously consider other ways of trying to hold those in charge of companies to account.   For example, it is possible that the proposed expansion of the "failure to prevent" offences (mentioned in our last post here) to a wider group of economic crimes may change the landscape for DPAs and give rise to more individual prosecutions being commenced, at least one of which the SFO will be keen to make stick.