Transparency International and Spotlight on Corruption sent the Director of the SFO a letter on 13 February to urge the SFO to carry out - in conjunction with the AG's office and the CPS - a review of the effectiveness of the DPA regime in doing what it was principally designed to do - to encourage better corporate behaviour, a key feature of which is the self-reporting of wrongdoing. Among other things, the concern has been raised that the Airbus DPA, in explicitly moving away from the "bright line" between self-reporting and cooperation, may lead to corporates being disincentivised to bring matters to the attention of the authorities, knowing that if they cooperate to the fullest extent thereafter, a DPA is a likely outcome. The letter has a point - and rightly focuses on the distinction that US authorities draw between self-reporting (which deserves the fullest credit) and cooperation (which deserves less) suggesting the UK should follow suit. However, a 25% discount for cooperation, however exemplary, where there is no self-report, may not provide sufficient incentive for corporates to settle criminal charges, particularly as a discount of one-third would apply if they pleaded guilty at the earliest opportunity.
"Now that the Serious Fraud Office has used DPAs in seven cases and the regime has been in place for nearly 6 years, we believe it is time for the SFO to evaluate the issues arising from their use in the UK to ensure greater consistency and fairness in how the regime applies and to ensure that the regime does indeed provide real deterrence to corporate criminality."