Negotiating Global Settlements: The UK Perspective

20.1 Introduction

This chapter discusses the three main options that corporates typically consider when they are seeking to settle criminal and related proceedings in England and Wales – negotiated plea agreements, civil recovery orders (CROs) and, as of 24 February 2014, deferred prosecution agreements (DPAs).

Central to any consideration of criminal settlements in England and Wales is the identification principle under the common law, which defines the scope of corporate criminal liability. The principle states that the ‘acts and state of mind’ of only those who represent the ‘directing mind and will’ of the corporate will be imputed to it.^[2] The application of this principle is generally restricted to the actions of the board of directors, the managing director and other senior officers carrying out managerial functions and acting and speaking as the corporate.^[3]

The identification principle has historically made it, and continues to make it, very difficult for authorities in the United Kingdom to convict corporates of any significant size.^[4] The English courts have, in certain situations, applied this rule of attribution to persons outside the board level, but this will depend on the construction of the particular offence in question.^[5]

This relatively narrow position should be contrasted with that in the United States, where corporates may be vicariously liable for the acts of their employees. This difference in the probability of a successful prosecution explains, in part, why settlement agreements are far more prevalent in the United States than in the United Kingdom.

The statutory landscape in the United Kingdom is changing to make the prosecution of corporates easier for authorities. Section 7 of the Bribery Act 2010 created criminal liability for corporates who fail to prevent ‘associated persons’ (potentially including agents, subsidiaries and other third parties as well as employees) from committing bribery. The Criminal Finances Act 2017 includes a similar offence of failure to prevent the facilitation of tax evasion. Under this offence (which came into force on 30 September 2017) prosecutors will need to prove that tax evasion has occurred, that a person facilitated this evasion and that the facilitator was a person associated with the accused corporate.

This type of offence of ‘failure to prevent’ may become increasingly common. The former Director of the Serious Fraud Office (SFO), Sir David Green KC, called on a number of occasions for the failure-to-prevent offence to apply to all financial and economic crimes, and in early 2017 the Ministry of Justice called for evidence in relation to the introduction of such an offence (the Call for Evidence). The current Director of the SFO, Lisa Osofsky, has also expressed her frustrations at the United Kingdom’s ‘antiquated’ system for prosecuting corporate fraud, which she has said is ‘so complicated’ that it can ‘make identifying responsible individuals challenging or impossible’ and thereby creates a ‘dangerous culture of organised irresponsibility’ instead of encouraging ‘offending companies to uphold the law and become good corporate citizens’.^[6]

In March 2019, Parliament’s Treasury Select Committee published a report following its economic crime inquiry,^[7] which included suggestions received from the SFO either to replace the identification principle with a form of vicarious liability^[8] or to introduce a new offence of failing to prevent economic crime. The committee made no recommendation as to which suggestion it preferred but appears to have favoured extending the failure-to-prevent offence.^[9]

The Ministry of Justice published its long-awaited response to the Call for Evidence on 3 November 2020, in which it did not reach any definitive conclusion on the way forward for reform but raised important questions, in particular about the operation of the identification doctrine.^[10] Accordingly, the Ministry of Justice requested that the Law Commission review the law relating to corporate criminal liability.

In June 2021, the Commission opened a consultation following publication of a discussion paper,^[11] and invited responses from practitioners (45 responses were received and fed into the Commission’s conclusions). On 10 June 2022, the Commission published its paper,^[12] outlining 10 options, rather than recommendations, for reform ranging from retaining the existing identification principle to introducing specific failure to prevent offences, including a failure to prevent fraud offence by an associated person, as well as a number of civil options. Notably, the Commission ruled out a broad failure to prevent economic crime offence given the overlap with other failure to prevent offences and challenges faced by companies in adopting reasonable procedures to tackle broad economic crime. In light of the current focus on economic sanctions, it will be some time before the Government reaches a consensus regarding these proposed options and which, if any, to pursue.

Each option for settlement currently available to a corporate has its own particular advantages and disadvantages, but a common feature is that they are all jurisdictionally limited in their effect to the United Kingdom. Where there are multiple investigating authorities from different jurisdictions, settlement negotiations in the United Kingdom will typically be approached as part of a larger, overarching strategy to settle current and prospective proceedings globally.

UK authorities are increasingly participating in global settlements, particularly with their US counterparts. It may yet be too early to identify any trends, although one distinct feature has emerged: the central role of the UK judiciary. The Innospec settlement was criticised by the senior judge who heard the case, Lord Justice Thomas, for being presented as a ‘done deal’,^[13] and the DPA model introduced in the United Kingdom departs significantly from its US counterpart by being conditional on substantial judicial review and approval.^[14]

Until the cases of SFO v. XYZ Ltd (Sarclad),^[15] SFO v. Rolls-Royce plc and Rolls-Royce Energy Systems Inc,^[16] and SFO v. Airbus,^[17] a further feature of settlements concluded by the UK authorities appeared to be that they were more likely to be agreed where the criminal conduct had been contained to an isolated incident. For example, the Balfour Beatty plc settlement (which resulted in the first CRO against a corporate in the United Kingdom) related to one particular contract.^[18] The first DPA in the United Kingdom, involving Standard Bank plc (now ICBC Standard Bank plc (Standard Bank)), concerned a particular debt transaction.^[19] Similarly, the sixth DPA involving Güralp Systems Ltd (GSL) concerned the company’s relationship with one intermediary, Dr Chi, who inappropriately used his position within a government-run research institute in the Republic of Korea to assist GSL.^[20]

XYZ Ltd (Sarclad) involved an SME that generated the majority of its revenue via sales to Asian markets, through the systematic offer and payment of bribes to secure contracts in a number of foreign jurisdictions over eight years.^[21] This conduct could not be said to be contained, as it involved at least 28 separate contracts, although the misconduct was alleged to have been carried out by a small number of employees. Rolls-Royce involved corruption across multiple business lines in seven jurisdictions over the course of 24 years with the involvement of senior management, described in the judgment as ‘egregious criminality’ involving ‘truly vast corrupt payments’.^[22]

The nature and scale of the conduct in Airbus was similar to that in Rolls-Royce; the corruption, which was described as being ‘endemic’ in two core business areas of Airbus, spanned four years and extended to every continent in which Airbus operates.^[23] It also involved ‘very senior, senior and other employees, including employees with compliance responsibilities’.^[24] The 10th DPA, involving Amec Foster Wheeler Energy Limited^[25] (AFWEL), a UK-based global engineering company^[26] that used agents to pay bribes to foreign officials to secure oil and gas contracts in Nigeria, Saudi Arabia, Malaysia and Brazil, also involved a ‘scale and duration of corrupt practices’, which the court held ‘amounted to very significant and systemic corruption’. Whether Rolls-Royce, Airbus and AFWEL are the high watermark of criminality in corporate settlements remains to be seen, but the trend in these cases suggests that isolated or contained criminality may no longer be an indicator for securing a settlement with UK authorities.

Corporates facing proceedings in more than one jurisdiction could seek to settle each set of proceedings individually, but the concept of a global settlement is to coordinate these negotiations. In theory, a global settlement should be a ‘win-win’ scenario for both the corporate and the investigating authorities. By acting in concert, the investigating authorities are able to exert more pressure on the corporate to settle than they are likely to do in isolation. For the corporate, a global settlement is potentially a fairer outcome as the penalty will be assessed holistically and also achieves more finality than a domestic prosecution, which confers only limited double jeopardy protection (in those jurisdictions where such protection is granted).

As in Standard Bank, Airbus and G4S C&J,^[27] in Rolls-Royce, the corporate was required under the terms of the DPA to assist law enforcement agencies, regulators and multilateral development banks, including those overseas, at the reasonable request of the SFO. It was also recognised in the judgment that there remained a risk that Rolls-Royce would face liability in jurisdictions not covered by the global settlement involving the United Kingdom, the United States and Brazil.^[28] In contrast, there was no suggestion in the Airbus DPA that the company might face liability in other jurisdictions.

Dame Victoria Sharp, the President of the Queen’s Bench Division (as it then was), emphasised the importance of ‘international co-operation’ from the court’s perspective and pointed to Innospec, in which the court noted that ‘coherence in the level of financial penalties across different jurisdictions in cases of corporate wrongdoing is important so that forum shopping for the settlement of these kinds of cases is avoided’.^[29]

In practice, global settlements can involve significant risks. An example is the prosecution in Greece of former employees of Johnson & Johnson and its subsidiary, DePuy International Limited (DePuy), which included the prosecution of one individual, Robert Dougall, notwithstanding his 2010 prosecution by the SFO and conviction and sentence.^[30] Although Dougall was acquitted in the Greek proceedings, this case demonstrates that no settlement can confer an absolute guarantee against further proceedings in any jurisdiction – particularly not in jurisdictions where there is no limitation period for criminal offences (as in the United Kingdom, other than for summary offences).

Dougall’s prosecution must be contrasted with the outcome of the SFO’s investigation of DePuy. The company was investigated by the SFO following a referral from the United States Department of Justice (DOJ), which, along with other domestic and foreign authorities, had been investigating Johnson & Johnson in relation to payments made by DePuy to intermediaries for the purpose of making corrupt payments to Greek medical professionals working in the Greek public health system.^[31] The DOJ concluded a DPA with Johnson & Johnson in the United States as part of a global settlement over the unlawful conduct in Greece.

The SFO sought a CRO against DePuy rather than pursuing any criminal prosecution on the basis that such prosecution was prevented in the United Kingdom by the principle of double jeopardy. The former Director of the SFO, Sir David Green KC, took the view that the underlying purpose of the rule against double jeopardy is to stop a defendant from being prosecuted twice for the same offence in different jurisdictions: Johnson & Johnson’s DPA with the DOJ had the legal character of a formally concluded prosecution and punished the same conduct in Greece that had been investigated by the SFO.

That double jeopardy will be a bar to prosecution where a defendant has been convicted or acquitted by a foreign court on the same facts is uncontroversial,^[32] but whether the conclusion of a DPA in the United States is equivalent to a formally concluded prosecution has not been tested in the courts. The SFO gave no detailed argument as to why it concluded that DePuy’s prosecution in the United Kingdom was barred, and the application of the principles of double jeopardy in global settlements remains unclear.^[33] The SFO’s reasoning in relation to DePuy will also be problematic where as part of a global settlement it is seeking to agree its own DPA in the United Kingdom. If the SFO considers itself prevented by the rules of double jeopardy from pursuing criminal prosecution against a corporate that has agreed a DPA or other settlement with foreign authorities, then it may be prevented from agreeing a DPA under the statutory regime in the United Kingdom as prosecution may always follow a DPA if its terms are breached.^[34]

Furthermore, no settlement can prevent private civil litigation, which could potentially be assisted or even encouraged by material generated in connection with the settled proceedings. However, settlement could make civil action less likely (or at least less likely to be successful), than were a contested criminal trial to take place, by reducing the volume of material entering into the public domain as compared to a full trial of the facts.

Whether a global settlement is worth pursuing is therefore likely to depend very much on the circumstances of each case. Key considerations will be the jurisdictions and agencies involved, whether current or former employees of the offending corporate have agreed to co-operate with agencies and provide evidence (‘turn king’s evidence’), and the particular form or forms of settlement contemplated.

20.2 Initial considerations

This chapter assumes that the corporate has already decided that a settlement is desirable in principle. This is not a straightforward exercise and will involve many of the considerations discussed in the other chapters in this book. This is likely to include a comparison of the likely cost of agreeing a settlement (and any agreed financial penalty) as against the likely cost of defending criminal proceedings and the probability of a conviction (and any penalty imposed). It will also include the reputational damage that contested criminal proceedings may have on a corporate. Corporates should also consider that a criminal conviction for certain economic and financial crimes may exclude them from competing for certain public contracts.^[35]

Of course, a corporate may also successfully argue that the authority should not institute any proceedings against it: prosecutors must be satisfied of the evidential basis of the prosecution as well as the public interest in prosecuting.^[36] Many investigations in the United Kingdom result in no further action being taken against the subject of the investigation.

The attractiveness of a settlement is likely to vary considerably depending on the conduct under investigation and the investigating authorities involved. It is also likely to depend on the form of settlement available – for example, the advantages to a corporate of agreeing to a DPA in the United Kingdom may be very far removed from the advantages of agreeing to a DPA in the United States and vice versa. In some circumstances a settlement in the United Kingdom might not be an attractive prospect when considered in isolation, but the ability to secure a linked settlement with investigating authorities in another jurisdiction could tip the balance in favour of seeking a UK settlement as part of a global resolution.

Given that a settlement may not always be an obvious choice, the reasons for seeking to settle and the reasons for choosing a particular form of settlement should be clear before negotiations commence. The initial assessment of the corporate’s eligibility for the kind of settlement sought must be realistic, based on the best available information about the conduct and a thorough understanding of the attitude and approach adopted by the relevant authorities.

The corporate will also need to be clear about the risks that settlement negotiations entail: in the event that the negotiations break down, the corporate might find itself in a worse position than it would have been in had it not entered into the negotiations in the first place.

Finally, to demonstrate compliance with fiduciary obligations it will also be important to ensure that any decision makers have no personal interest in the outcome of settlement negotiations, as they would have if they were exposed to individual liability in connection with the conduct under investigation. This may be particularly complex in relation to small corporates where any decision makers face individual liability for criminal conduct while simultaneously attracting liability to the corporate by acting as the directing mind and will.

20.2.1 Options for seeking a settlement

20.2.1.1 CROs

A corporate could seek to persuade an investigating authority to dispose of an investigation by initiating civil recovery proceedings rather than a prosecution.

Civil recovery proceedings can be brought in the High Court by a number of UK enforcement agencies against property of a value in excess of £10,000 believed to have been obtained through unlawful conduct.^[37] As a form of settling criminal proceedings, a CRO has many features that could be helpful when a UK settlement is sought as one aspect of a global settlement. No prior UK conviction is required. The standard of proof is the civil one of the balance of probabilities. Judicial approval does not need to be sought before a claim can be brought, and the High Court’s jurisdiction to make the order extends over assets located overseas; although it may, in practice, be tempered by the local law position on enforcement of orders that are not based on a conviction.

A CRO was for many years regarded as the best possible settlement outcome for corporates facing potential criminal proceedings in the United Kingdom, and an outcome that could plausibly be expected in a corporate self-reporting case. Two developments have impacted on this view.

First, under its current policy, the SFO will be less ready than it historically has been to dispose of an investigation by way of a CRO.^[38] In part, this is a response to the OECD’s criticisms of the United Kingdom’s lack of commitment to combating bribery of foreign public officials.^[39] In the event that the SFO were to agree to a CRO, its terms will now be published in full, which removes some of the historically perceived benefit of this form of settlement.^[40]

Secondly, the SFO has demonstrated that civil recovery proceedings and criminal proceedings are not necessarily mutually exclusive provided that the conduct can be divided. In conjunction with the conviction of Bruce Hall in 2012 and the making of a confiscation order and compensation order against him, the SFO brought civil recovery proceedings in respect of conduct falling outside the scope of the indictment because UK jurisdiction did not arise.^[41]

This has to be considered, however, against the background of the criticism by Thomas LJ in Innospec of the use of a CRO in addition to trial on indictment; Thomas LJ concluded that where the facts and public interest determined that a prosecution was appropriate, the use of the civil jurisdiction was consequently inappropriate. In particular, the judge deprecated the possibility of matters arising in the same case coming within the jurisdiction of two separate judges from two separate courts. In contrast, the use of a CRO for DePuy was less problematic as the corporate was not the subject of an indictment.

20.2.1.2 DPAs

A DPA may be regarded as the halfway house between a negotiated plea agreement and a CRO. A DPA is only available in limited circumstances; the power to apply to the courts for a DPA rests solely with the prosecutor,^[42] and the DPA provisions reserve to the prosecutor (currently only the SFO or the Crown Prosecution Service (CPS)) the right to extend any invitation to enter into DPA negotiations.

In addition, as was identified by the former Director of the SFO,^[43] the high threshold for corporate criminal liability under English law reduces the incentive for corporates to enter into a DPA at all. To date, none of the 12 DPAs secured in the United Kingdom appears to have faced any difficult application of corporate criminal liability:

• Standard Bank plc, Airbus and Airline Services Limited ^[44] concerned the strict liability offence of failing to prevent bribery under section 7 of the Bribery Act 2010;
• XYZ Ltd (Sarclad) applied to a small company in which the directing mind and will was easily identified;
• Rolls-Royce, GSL and AFWEL concerned the strict liability offence of failing to prevent bribery as well as substantive offences of bribery and corruption involving, on the facts as admitted by those entities for the purposes of the DPA, controlling minds of the company; and
• in Tesco Stores Limited,^[45] Serco Geografix Limited^[46] and G4S C&J, the alleged offences were said to have been committed by individuals who the parties accepted constituted the directing mind and will of the respective companies.^[47]

The DPA Code of Practice provides little guidance as to what extent a corporate entity can introduce the possibility of a DPA into any discussions it may hold with the SFO, but it does outline the factors the SFO will consider when inviting a corporate to enter into a DPA, the process of being invited into DPA negotiations and a framework for once negotiations have begun.^[48]

In theory, a DPA should be an attractive form of settlement as the corporate avoids prosecution, escaping some of the stigma and adverse publicity necessarily associated with any criminal trial and, if successful, a conviction. A corporate will have the opportunity to make representations on and to influence the terms of the settlement that is made public, and there will be no mandatory debarment from public contracts. Importantly, a DPA may be part of a global resolution that may be in the overall commercial interests of the corporate.

The corporate is nevertheless the subject of criminal proceedings that are suspended. The offences alleged to have been committed are particularised in an indictment, and further detailed in the statement of facts accompanying the DPA. The terms of the DPA will include not only a financial penalty but may also include disgorgement of profits and compensation payments. Unlike a criminal sentence, a DPA may extend to requiring the corporate to submit to a compliance monitor for a specified period.^[49]

The terms of the DPA may require the corporate to disgorge the gross profit made as a result of the criminal conduct.^[50] The DPA may also impose a financial penalty,^[51] which must be broadly comparable to the fine that a court would have imposed on conviction and is accordingly assessed by reference to the relevant Sentencing Guideline for fraud, bribery and money laundering offences (Sentencing Guideline).^[52] Where the corporate has limited means and ability to meet these financial obligations, the court may nevertheless approve a penalty that would render the corporate insolvent where it would be in the interests of justice to do so.^[53] Among other things, the court will consider the impact of any financial penalty on the corporate’s staff, service users, customers and the local economy.

In XYZ Ltd (Sarclad), the corporate’s parent agreed to provide financial support to Sarclad by returning almost £2 million from dividends received for Sarclad to pay towards disgorgement.^[54] The court made clear that the innocent parent was under no contractual or legal obligation to contribute towards the financial penalty imposed on its subsidiary for the criminal conduct.^[55] However, the court did point out that the parent had received £6 million in dividend payments since acquiring Sarclad.

As in Sarclad, the parent company of AFWEL John Wood Group plc (Wood), which had guaranteed the obligations of its subsidiary under the DPA, was also determined to be an innocent party in respect of the proceedings^[56] because the alleged wrongdoing committed by AFWEL had occurred even before Wood’s predecessor (Amec Foster Wheeler plc) acquired the company. Wood’s ‘twice removed’ distance from the alleged wrongdoing was a critical factor in Mr Justice Edis’s decision that a DPA was in the interests of justice; if any of the individuals involved in the alleged wrongdoing had still been involved in AFWEL, a DPA would not have been deemed appropriate.^[57] Further, Wood did not seek a reduction in the price it paid for AFWEL to account for the contingent liabilities that might have arisen from the SFO’s investigation into the company, and so was able to benefit from a 50 per cent reduction in the financial penalty it was required to pay pursuant to the DPA (which still amounted to almost £50 million not including disgorgements of approximately £48 million). If Wood had sought a reduction in the purchase price, it would have been deemed to have benefited inappropriately from the wrongdoing of AFWEL and a reduction would likely not have been granted.^[58]

Mr Justice Davis relied on the reasoning in XYZ Ltd (Sarclad) when he made no order as to financial penalty nor the SFO’s costs in GSL, recognising that a disgorgement of £2.07 million in gross profit was all the company could sensibly be expected to pay.^[59] Unlike the other DPAs in which a financial penalty was required to be paid immediately or a clear timetable of payments was identified, GSL’s only requirement regarding the disgorgement of profits was to make the payment by the fifth anniversary of the DPA.^[60]

In Rolls-Royce, the total financial orders (including those imposed in the United States and Brazil) amounted to over £650 million even after a 50 per cent reduction of the UK element of the financial penalty in recognition of Rolls-Royce’s ‘extraordinary’ co-operation.^[61] The court was satisfied that this figure was sufficient to bring home to both management and shareholders the need to operate within the law without being so high as to put Rolls-Royce out of business, which would have been inappropriate in the circumstances.^[62]

In Serco Geografix Limited, the company was ordered to pay a financial penalty of £19.2 million and the SFO’s investigative costs of £3,723,679. The company would also have been required to pay compensation of £12.8 million, but this was fully offset by payments made pursuant to Serco Limited’s 2013 settlement agreement with the UK Ministry of Justice.^[63]

Similarly, in G4S C&J, the company was ordered to pay a financial penalty of £38.5 million and the SFO’s costs of £5.95 million, but no compensation or disgorgement of profits since the court took into account the settlement that had been reached in 2014 under which G4S C&J agreed to pay £121.2 million to settle the Ministry of Justice’s claims against the company.^[64]

In settling with the French National Financial Prosecutor (PNF), the SFO, the US DOJ and Department of State (DOS), Airbus faced a global financial sanction in excess of €3.5 billion, of which close to €1 billion was paid to the SFO. This comprised the disgorgement of profits of €585.9 million, the SFO’s costs of €6.9 million and a financial penalty of €398 million. As noted by Sharp P in her judgment, this was the largest UK DPA financial settlement to date and greater than the combined total of all previous financial settlements under UK DPAs.^[65]

The process of negotiating a DPA could itself deter a corporate from seeking this sort of settlement. It is lengthy and uncertain, as any agreement reached with the relevant prosecuting authority is ultimately conditional on judicial approval. It is accompanied by potentially as great a degree of public scrutiny as may be attracted by contested criminal proceedings. The provision of false, misleading or incomplete information to the relevant prosecuting authority could amount to an offence,^[66] and it can be extremely challenging for a corporate, and the relevant individual within the management structure, to certify that the material provided to the investigating agency is complete.

The DPA may become a more attractive option for corporates if there is more flexibility on the terms imposed and if higher discounts to financial penalties or sentences continue to be applied. With respect to increased discounts, the DOJ’s enhancements to its Pilot Program could be of interest to the SFO. In November 2017, the DOJ announced that the Pilot Program it launched in 2016 to encourage companies to self-report potential violations of the Foreign Corrupt Practices Act (FCPA) would be made permanent and incorporated into the United States Attorneys’ Manual (now known as the Justice Manual), subject to some amendments.^[67] Under the revised FCPA Corporate Enforcement Policy, where a company ‘satisfies’ the DOJ’s standards of ‘voluntarily self-disclosing, fully co-operating and ‘timely and appropriately remediating’, there will be a ‘presumption’ that the government will resolve the matter with a declination – unless there are aggravating circumstances (for example, recidivism). However, even where circumstances ‘compel’ a criminal enforcement action, the DOJ will recommend a 50 per cent reduction off the low end of the US Sentencing Guidelines fine range for self-reporting companies, except in the case of a criminal recidivist. Finally, to be eligible for leniency under the FCPA Corporate Enforcement Policy, a company must pay all disgorgement, forfeiture, and restitution resulting from the misconduct at issue.

In the DPA reached with XYZ Ltd (Sarclad), the court stated that a discount of 50 per cent to the financial penalty that would have been imposed^[68] was appropriate, given that the corporate had self-reported and admitted the criminal conduct far in advance of the earliest possible opportunity that would have applied after a criminal charge.^[69] This sizeable reduction was not based on an application of the Sentencing Guideline or the DPA statutory provisions themselves.

Even more surprising (at first glance) was the application of a 50 per cent discount to the financial penalty in Rolls-Royce, where the corporate did not make the initial self-report.^[70] The initial report of suspicions of criminality in the corporate’s civil business in Asia came from public internet postings and precipitated the SFO’s investigation; however, this led to an immediate and extensive investigation by the corporate during which it made a number of voluntary reports to the SFO in respect of other business lines in multiple jurisdictions.^[71]

Rolls-Royce’s co-operation with the SFO and other authorities was said to be ‘extraordinary’.^[72] Rolls-Royce took a number of steps in addition to the extensive investigation and voluntary reports to authorities: it reviewed relationships with intermediaries, agents, advisers and consultants; provided over 30 million documents in electronic and hard copy form (Rolls-Royce agreed to the use of digital methods to identify privilege issues in the material and the use of independent counsel in relation to the privilege review); allowed the SFO to interview witnesses first and waived privilege over its own internal interview memoranda; provided material to the SFO voluntarily (without need for recourse to compulsory powers); consulted with the SFO in respect of media coverage; provided all financial data sought by the SFO and co-operated with financial assessments undertaken; and sought the SFO’s permission before winding up companies that may have been implicated in the SFO’s investigation.

The SFO submitted that in the particular circumstances of the case, the court should not distinguish between the corporate’s assistance and that of those who have self-reported from the outset. This was accepted on the basis that what Rolls-Royce reported was far more extensive and of a different order than might have been exposed without its co-operation.^[73] The court was satisfied that, from the moment of the initial question from the SFO prompted by the public postings on the internet, Rolls-Royce could not have done more to expose its own misconduct. Self-reporting was said in the judgment to be a core purpose of DPAs, and the weight this attracts depends on the totality of the information provided; it seems that the measures that Rolls-Royce took to unearth and report the extent of the criminality made up for the absence of an initial self-report.^[74]

The decision in Serco Geografix Limited revisited the issue of self-reporting and co-operation. In his concluding comments, Mr Justice Davis noted that any cynicism about the process by which a corporate entity can take advantage of a DPA ‘is not well-founded’ and that approval will only be given where there is the ‘clearest possible demonstration of integrity’ on the part of the relevant company, which will require self-reporting, full co-operation with the investigation, a willingness to learn lessons and acceptance of an appropriate penalty. He added that a willingness to learn lessons must be shown via ‘real, substantial and continuing remedial measures’.^[75] The court proceeded to apply a 50 per cent discount and referred to the fact that in all but one of the earlier instances of approval of DPAs, the financial penalty has been discounted by 50 per cent rather than one-third. This was found to ‘encourage corporate responsibility in terms of early reporting of criminal conduct’.^[76]

In Airbus, Sharp P adopted a similar approach to Leveson P in Rolls-Royce and took ‘self-reporting’ to encompass all subsequent self-reports that were of a high-quality and brought significant wrongdoing to light.^[77] Airbus was found to have co-operated with the SFO ‘to the fullest extent possible’ despite it getting off to a ‘slow start’.^[78] One particularly notable part of Airbus’ co-operation included the ‘unprecedented step’ for non-UK companies to accept the SFO’s jurisdiction in respect of the reporting of conduct which had taken place exclusively overseas.^[79] This serves as a useful reminder to non-UK parent companies that their management of UK-incorporated subsidiaries may make the parent subject to the UK Bribery Act 2010, even in respect of conduct which is unrelated to the United Kingdom.

Sharp P acknowledged that the ‘true catalyst’ for the self-report to the SFO was the dialogue with UK Export Finance (UKEF), but noted that Airbus had identified ‘red flags’ to UKEF when Airbus knew that UKEF considered itself obliged to report corruption.^[80] The result is a growing body of cases suggesting that a DPA may be available in the absence of an initial self-report, if there is sufficiently extensive subsequent co-operation and ongoing reporting of ‘new’ misconduct. Further, a report to a body that it is known will pass information to the SFO may attract some ‘co-operation credit’.

There is a clear view among practitioners that the incentives to enter into a DPA, in particular the apparent maximum discount on penalty, embedded within the statutory scheme,^[81] of one-third (the same as for an early guilty plea) is insufficient and fails to recognise the positive factors in the conduct of the corporate that will have led to the offer of a DPA in the first place. This view appears to have been accepted by the SFO and the judiciary, as a 50 per cent reduction has been applied on each occasion since the Standard Bank plc DPA except for G4S C&J, who was given a 40 per cent discount on the basis that the company’s co-operation could not, unlike the other DPAs, be said to be ‘extraordinary or otherwise exemplary’. In this case, Mr Justice Davis noted that G4S C&J was entitled to more than the minimum 33 per cent discount available under a DPA, but it was not entitled to the full 50 per cent discount as its co-operation had been initially ‘less than full’.^[82]

20.2.1.3 Negotiated plea agreements

A plea agreement can be negotiated with the prosecutor at any stage after indictment, up to the conclusion of the trial. It may be preceded by advance representations on charge, which a prosecutor is under no obligation to consider but may do so at his or her discretion. Both advance representations and plea agreements could potentially reduce the scope of the conduct charged, or even determine the nature of the offence charged; as seen in BAE Systems,^[83] where the corporate had been investigated for overseas corruption, but pleaded guilty to knowingly procuring the failure of its subsidiary, British Aerospace Defence Systems Ltd (BADS), to comply with the provisions of section 221 of the Companies Act 1985, and thereby aiding and abetting, counselling and procuring the commission of the offence contrary to section 225 of the Companies Act, by the officers of BADS.^[84]

In BAE Systems, Mr Justice Bean was critical of the restriction on the scope of the conduct in the settlement reached between the corporate and the SFO, and in light of these criticisms, prosecuting authorities may in future be less willing to minimise the conduct in negotiated plea agreements.^[85] Mr Justice Bean made clear that in cases involving negotiated plea agreements, the judge will not be bound by the agreement between the prosecution and the defence, and the prosecution’s view on the proposed basis of the plea is deemed to be conditional on the judge’s acceptance of the basis of the plea.^[86] The judge made clear that the involvement of the criminal courts precludes the passing of a sentence on an artificial basis. While Mr Justice Bean accepted the basis of the sentence in BAE Systems, this may not always be the case.^[87]

The judge also expressed surprise that the SFO had committed to a blanket indemnity against investigations or prosecutions of any member of the BAE Systems group for past conduct whether disclosed or otherwise.^[88]

However, even if the charges remain unchanged, a guilty plea at the earliest possible stage makes the corporate eligible for a reduction of up to one-third off the sentence that would otherwise have been imposed on conviction.^[89]

UK prosecutors will invariably be open to negotiations on plea. The prosecution and the defence are in all cases required to resolve issues and agree evidence wherever possible prior to trial.^[90] The prosecutor must, however, have regard to any applicable restraints on the exercise of discretion, including the Witness Charter and the Code of Practice for Victims of Crime.^[91]

In accordance with the Code for Crown Prosecutors, prosecutors will also need to ensure that the plea reflects the seriousness and extent of the offending.^[92] The Attorney General’s Guidelines to the legal profession state that prosecutors must not agree to a basis of plea that is misleading, untrue or illogical or insupportable.^[93] Where a case involves multiple defendants, the bases of plea must be factually consistent. Trial judges may ultimately, of their own motion, disregard the agreement and direct a ‘Newton’ hearing to establish the relevant facts.^[94]

Just as the decision on whether to accept a proposed basis of plea is ultimately one for the trial court, it is similarly for the sentencing court to impose the sentence on conviction. In cases of serious and complex fraud the Attorney General’s Guidelines permit the prosecution and defence to present a joint written submission to the court on sentence but this is not binding on the court.

In R v. Dougall, the court declined to impose the SFO’s suggested suspended sentence on an assisting offender, although the custodial sentence that the court did impose was overturned on appeal. The Court of Appeal criticised the SFO for adopting a role that was more akin to that of the defence. The courts in BAE Systems and in Innospec felt compelled to accept the suggested sentences because they formed part of a global settlement that the corporate entity had been invited to accept (and because of the corporate’s limited financial resources in Innospec), but Thomas LJ in Innospec warned that this approach would not be repeated in the future.

The attractiveness of a plea agreement to a corporate will depend largely on the weight of the prosecution evidence, including the existence of any co-operating co-offenders under the ‘offender assistance’ provisions set out in sections 71 to 75 of the Serious Organised Crime and Police Act 2005 (SOCPA). In particular, the corporate’s willingness to plead is likely to reflect an assessment that the prosecutor would be able to establish corporate criminal liability. As mentioned in the introduction to this chapter, guilty pleas by corporates are more likely to be forthcoming for offences where the identification principle does not apply or liability is strict, or both, or where the corporate is small and lines of responsibility are clear; by contrast, the prosecution might in other cases struggle to identify culpable senior management.

Evidence provided by a co-operating co-defendant was a factor in Petrofac’s conviction in 2021. On 4 October 2021, the company pleaded guilty to offences under section 7 of the Bribery Act in relation to contracts worth approximately US$3.67 billion between October 2011 and May 2017, following a plea agreement with the SFO. Petrofac was ordered to pay £77 million, which was reduced by one-third on account of its early guilty plea. David Lufkin, a former group head of sales and senior vice president of business acquisition of Petrofac, had entered guilty pleas to bribery offences, separately, and co-operated with the SFO, which was formalised in an agreement under section 73 of SOCPA. Her Honour Judge Deborah Taylor found that Petrofac would not have pleaded guilty had Mr Lufkin not provided detailed co-operation and evidence to the SFO.^[95]

The size of the likely penalty will also be a factor when the corporate is considering whether to plead. There is an established procedure in place by which a defendant in Crown Court proceedings can seek a binding indication from the trial judge of what sentence would be imposed on a guilty plea (the Goodyear indication).^[96] That Guideline may have similarly increased the attractiveness of plea agreements for corporates, not only by making the likely sentence more predictable at an even earlier (pretrial) stage but also by increasing the risk of higher penalties being imposed than has historically been the case and thereby incentivising an early, negotiated settlement.

In Petrofac, the eventual penalty was comparatively low considering the scale of corruption and the value of the contracts and benefit obtained by the parent company, and the apparent failures in the anti-bribery and corruption procedures. Notwithstanding, the judge approved the amount, noting the steps that Petrofac had taken to improve, and the fact it had accepted and addressed its past offending. The case underlines the possible benefits of co-operating with the SFO and entering into a plea agreement, even if a DPA is not available.

The downsides of a plea agreement include the inability to contest the charges in a public forum, and loss of the opportunity of an acquittal. The advantages of a plea agreement also decline rapidly with time once a trial is under way.

There are also risks arising from plea negotiations. The Attorney General’s Guidelines state that the prosecutor may not rely on the defendant’s participation in plea negotiations or on any information disclosed during those negotiations as evidence against the defendant in the event that the negotiations fail, but a signed plea agreement can be relied on as confession evidence against the defendant. A prosecutor would normally be free to rely on any evidence gathered as a result of enquiries made on the back of information disclosed in the course of the negotiations, and information provided by the defendant in connection with the negotiations could normally be relied on both in related prosecutions of other defendants and in a prosecution of the defendant for another offence. In addition, the prosecutor might be obliged to disclose material relevant to the negotiations to a co-defendant.

In June 2022, Glencore Energy (UK) Ltd, a UK subsidiary of the global commodity trading and mining firm Glencore, pleaded guilty to bribery offences under sections 1 and 7 of the Bribery Act 2010.^[97] This is the first conviction of a company for bribing another person under the Bribery Act 2010 since its enactment. This followed a plea agreement in May 2022 by two affiliated companies, Glencore International AG and Glencore Limited, in relation to bribery and market manipulation offences in the United States, as part of US$1.1 billion settlement with the DOJ. The convictions were the outcome of a multi-agency investigation by the UK, US and Brazilian authorities.

In November 2022, the UK subsidiary was sentenced and ordered to pay £281 million for bribery offences (reduced by one-third on account of the early guilty plea) in the largest-ever penalty for a corporate conviction.^[98] Glencore’s considerable co-operation with the SFO and its early guilty plea were highlighted by the judge, as well as by the prosecution and defence. Although details of the settlement negotiations with the SFO remain confidential, the involvement of US authorities and the plea agreements in the United States, as well as the coordinated approach between the agencies, were reportedly significant factors in the UK subsidiary’s decision to plead guilty.

20.2.2 Strategic considerations when seeking UK settlement

Once a corporate has decided in principle to seek to settle criminal proceedings in the United Kingdom, the objective will be to achieve the desired form of settlement as effectively as possible, avoiding or minimising, to the fullest extent possible, adverse consequences. This section will discuss common strategic considerations that are likely to arise at the outset and during the early stages of settlement negotiations.

20.2.2.1 Timing of settlement

A preliminary strategic consideration will be the point at which to approach the relevant authority. On the one hand, a successful outcome is more likely the earlier an approach is made. The financial and reputational costs to a corporate of being a subject of a criminal investigation and prosecution will increase incrementally, and early self-reporting is an important factor in determining whether a DPA will be offered. Clearly, however, the corporate needs to have sufficient knowledge about the conduct it proposes to report.

A corporate may self-report the conduct in question or otherwise bring it to the attention of the relevant authorities, for example, pursuant to money laundering reporting obligations or, for listed corporations, obligations to disclose information to the market. The SFO published guidance on self-reporting in 2012,^[99] and in 2019 it published internal guidance outlining what it considers to be good practice with respect to co-operation by a company under investigation.^[100]

In all other cases the determining factor is likely to be the type of settlement sought. Where the favoured outcome is a CRO, the driver will be to reach agreement on this form of alternative disposal before any steps are taken to initiate criminal proceedings. If the preferred form of settlement is a DPA, the timing of the settlement will be dictated by the DPA Code of Practice, but again will involve negotiations with the authority before the commencement of criminal proceedings. A settlement could be reached at any of the following points in time.

Before major production of documents

A corporate must balance the need to understand any potential criminal liability it faces with the benefit of making an early report to an authority. As stated above, corporates should establish sufficient knowledge of the circumstances before deciding to seek a settlement. Once that decision has been made, it is unlikely that an agency in the United Kingdom will be prepared to reach a settlement agreement without receiving all relevant documentation and undertaking some form of investigation.

Once in the hands of the authorities, any material provided could be used against the corporate and individuals. In addition, such material can be provided to other domestic and international agencies and may ultimately be disclosed in any related civil proceedings. It also has to be assumed that documents provided to investigating agencies may ultimately end up in the public domain.

Before witness testimony

To the extent that corporates record any interviews they conduct, UK authorities are likely to want access to these first accounts, which may raise issues of legal professional privilege. The Court of Appeal’s judgment in Director of the SFO v. ENRC^[101] has brought some much-needed clarity to this area of the law, following two conflicting first-instance decisions of the High Court of England and Wales.^[102]

The Court of Appeal in ENRC disagreed with the High Court’s strict approach to whether notes of interviews attract litigation privilege, finding that uncertainty over whether criminal proceedings were likely would not in itself prevent litigation from being in reasonable contemplation, and that the whole subtext of the relationship between the relevant company and the authorities was important. In this case, the court found that the relationship between ENRC and the SFO meant that there was a possibility, if not a likelihood, of prosecution if the self-reporting process did not result in a settlement. The court also said that where the SFO made explicitly clear in its communications to the company that there was the prospect of a criminal prosecution, and external legal advisers were engaged to deal with that possibility, there was a clear ground for contending that criminal prosecution, and therefore litigation, was in reasonable contemplation at the time the interview notes were prepared.

The Court of Appeal also found that the need to investigate the existence of alleged corruption was a subset of defending the litigation, and hence that notes made in interviews during the investigation stage were made for the dominant purpose of litigation.

This decision underlines the importance of obtaining advice when corporates need to conduct and create records of interviews during the fact-finding stage of an investigation, and before a prosecution decision is made by the authorities, to understand the alleged facts and any potential liability. Ordinarily, the SFO will still conduct interviews as part of its investigations following a self-report, even where there have already been interviews by the corporate. Nevertheless, the authorities may, in some cases, expect a corporate that wishes to obtain credit for co-operating, to waive privilege over certain documents that have been prepared during the investigation stage, including any reports that have been prepared for the internal investigation,^[103] for the dominant purpose of engaging in settlement negotiations with the authorities. The SFO’s internal guidance on corporate co-operation^[104] states that in addition to witness accounts, companies seeking credit for co-operating should provide any recording, notes and transcripts of interviews and identify a witness competent to speak to the contents of each interview.

Legal advice on the limitations that should be explicitly placed on any privilege waiver a corporate proposes to provide is an essential safeguard. As a recent example, in 2016 Barclays Plc and Barclays Bank Plc (Barclays) gave a limited waiver to the SFO during its investigation into the conduct of the bank and certain executives during capital raisings in 2008, in respect of which legal advice had been taken.^[105] In the civil proceedings that followed immediately after the criminal trial of certain Barclays executives, PCP Capital Partners LLP v. Barclays Bank Plc,^[106] the bank sought to withhold privilege in respect of legal communications that had not been used in the criminal trial and had not therefore lost their privileged status as a result. However, in deploying the lawyers’ advice in the civil proceedings to support its case on the merits, the bank was found by the High Court to have effectively waived privilege in all communications with its lawyers relating to two particular transactions. This decision was made despite the bank limiting reliance to documents that had already lost their confidentiality, having been used in the criminal proceedings shortly before the civil case.

Before indictment

In most cases, corporates will be seeking to settle before indictment. As discussed above, settlement negotiations may provide an opportunity to influence the content and timing of the indictment.

Before trial

A settlement at the early stages of criminal proceedings may help to mitigate reputational damage by reducing the amount of material made available to the authorities and, through them, potentially becoming available in the public domain or to other overseas agencies.

There may yet be benefits of settling after the commencement of trial. Although disclosure obligations will have been complied with and material may have been referred to in open court (thereby becoming accessible to the public), by avoiding witness testimony the corporate may minimise the risk of further reputational and other costs as a result of adverse prosecution testimony or unpredictable defence witnesses. Settling before conviction could potentially also serve a public relations objective in presenting the corporate publicly as being somewhat co-operative (despite initially contesting the proceedings).

20.2.2.2 Ability to secure a global settlement

An early settlement of UK criminal proceedings may also increase the prospects of concluding a global settlement. In the global settlement scenario, timing is likely to be primarily driven by the authority ‘leading’ the settlement negotiations. As press reports suggested in relation to the LIBOR investigation, there can be a ‘race’ among investigating authorities to charge defendants as a means of securing jurisdiction.^[107]

Where a number of authorities may be investigating or have an interest in investigating the conduct, the potential for conflicts of jurisdiction to arise should be addressed by communications between prosecutors pursuant to multilateral and bilateral agreements such as the Eurojust guidelines for deciding which jurisdiction should prosecute and the Agreement for Handling Criminal Cases with Concurrent Jurisdiction between the United Kingdom and the United States.^[108] Prosecutors engaged in plea negotiations in serious and complex fraud cases are directed by the Attorney General’s Guidelines to liaise with any counterparts known to have an interest in the defendant, in accordance with the Prosecutors’ Convention and any other relevant agreement or guidance.^[109] However, these arrangements would not be enforceable by corporates who find themselves adversely affected by any departures from their terms; in any event, such agreements do not tend to address settlements.

In practice, constructive global settlement discussions require a high level of communication between the investigating agencies involved and also between the lawyers acting for the corporate and those investigating agencies. By way of example, in Standard Bank plc there was clearly a high level of communication between the SFO and the DOJ (as well as between the bank’s lawyers and both the SFO and the DOJ), which ultimately resulted in the DOJ confirming in writing in advance of the UK settlement that in view of the terms of the proposed settlement it did not propose to continue its own investigation.

The SEC, on the other hand, decided to continue with its own investigation into the civil (as opposed to criminal) consequences of the alleged conduct, which resulted in a separate settlement with the bank. Although the SEC’s investigation related to separate issues, the bank completed its settlement with the SEC very shortly before the final DPA hearing in the United Kingdom, and the settlement was announced on the same day. Coordinating the timing of the settlement so that it was announced at the same time was clearly in the bank’s interests, as it ensured that the UK and US investigations into the conduct were resolved simultaneously, with the bank able then to draw a line under the events and focus on the future.

Similarly, in Rolls-Royce it was clear that substantial discussions had taken place between the SFO, the DOJ and the Brazilian public prosecutor to ensure a coordinated global resolution of the relevant conduct; indeed, its DPA with the DOJ was fully disclosed in the UK DPA proceedings,^[110] and the DPA hearing in the United Kingdom was brought forward for reasons linked to the change in administration in the United States in January 2017.^[111] Rolls-Royce announced settlements with those authorities in parallel with its DPA with the SFO. The corporate was apparently able to coordinate between prosecuting authorities such that it was prosecuted for different conduct in different jurisdictions;^[112] it was also given US$25 million credit by the DOJ for fines paid in Brazil in relation to conduct that was overlapping between its DPA in the United States and its leniency agreement in Brazil.^[113]

In Airbus, the DPA represented the conclusion of the SFO’s joint investigation with the PNF into the company and the investigation conducted by the DOJ and the DOS in parallel. Each prosecuting authority took responsibility for a number of geographical areas in which Airbus operated or customers of Airbus and simultaneously entered into their own form of resolution with the company: a DPA, a judicial public interest agreement (CJIP) and a consent agreement.

A joint investigation team agreement, which is novel in the DPA context, was entered into between the SFO and the PNF.^[114] It seems that one reason for this was to ensure access to relevant information that the SFO would otherwise have been unable to receive because of the French Blocking Statute prohibiting certain disclosures of information by French persons in foreign proceedings.^[115] The PNF also took primacy over a number of aspects of the case.^[116]

It is important to keep in mind when negotiating simultaneous settlements with multiple authorities and regulators (both at home and abroad) that the subject ensures that the published findings in each investigation concluded by a negotiated settlement are consistent, as authorities may have an incomplete understanding, or different interpretation, of the facts.

20.2.3 Written submissions to UK prosecuting authorities

One important risk that settlement negotiations pose for corporates is that the material generated will be relied on in the event that the negotiations break down; whether by the recipient authority or by third parties. Even if settlement negotiations will attract confidentiality to varying degrees, there will always be a number of avenues through which material provided to the authorities may be made available to other authorities and to third parties.

The extent to which settlement negotiations will generate material, and the extent to which such material may be protected from onwards disclosure, will depend on the form of settlement in question. Written submissions made to a prosecutor in the course of negotiating a plea agreement are confidential and will only be made available to third parties where it can be shown that the prosecutor’s obligation to preserve confidentiality is outweighed by a countervailing interest.^[117]

In DPA negotiations, both the form and content of documents are governed by statute and are not negotiable. These documents will include the draft statement of facts and the terms of the proposed DPA, as well as the preliminary application to the court.^[118] The prosecutor will require these documents to be agreed before the application to the court can proceed. They will also include any submissions contained in related correspondence with the prosecutor, as well as minutes of any meetings between the corporate and the prosecuting authority.

20.2.4 Oral presentations to UK prosecuting authorities

Presenting information orally, as an alternative to written submissions, could in theory reduce the risk that settlement negotiations pose for corporates by limiting the amount of incriminating documentary material generated in settlement negotiations or otherwise provided to the authorities. As a strategy it is obviously conditional on securing the agreement of the prosecuting authority and is not as frequently encountered in the United Kingdom as in the United States, but the SFO is known to have acceded to requests of this nature on occasion.

Notably, this approach was employed in relation to the first and second DPAs entered into in the United Kingdom. However, in the Administrative Court case of AL v. SFO,^[119] the court, in the context of a criminal trial of individuals following the corporate’s^[120] entry into a DPA, criticised the use of ‘oral proffers’ as ‘highly artificial’ and expressed its surprise that the SFO did not more robustly demand the written notes of interviews made during an internal investigation.

The judgment is likely to cause the SFO to be cautious about relying on oral proffers in future investigations and instead to more robustly challenge broad claims to privilege. A senior SFO manager has stated^[121] that this decision emphasised the danger for the SFO in not challenging excessively wide claims of privilege. However, given the less restrictive approach taken to legal professional privilege by the Court of Appeal in ENRC, there is likely to be a tension between the authorities’ desire to challenge wide claims to privilege and demand written notes of interviews, and the Court of Appeal’s decision that written interview notes made during an internal investi­gation are capable of being covered by litigation privilege.

Consequently, although oral proffers may no longer be acceptable, the authorities and co-operating corporates may find themselves in a predicament. The corporate should avoid inadvertent waivers of privilege, and the SFO is unable to demand written interview notes made while litigation was reasonably in contemplation, and for the dominant purpose of litigation, as interpreted by the Court of Appeal in ENRC. In such cases, it is possible that the authorities may stress the importance of a corporate’s co-operation in settlement discussions and therefore seek voluntary waivers of privilege over such documents by the corporate.

It also raises the prospect that, in multi-agency settlements, there might be a divergence of approach between agencies that are content to receive oral proffers (e.g., the DOJ, which regularly accepts them) and those that are not. Oral summaries of privileged information and material could still be considered by the prosecuting authority as a limited (or indeed full) waiver of privilege, as there is no settled case law in the United Kingdom on this point, which could create a risk of collateral waiver of privilege in other jurisdictions or over other material. If the underlying interviews were not privileged, a prosecutor’s notes from the presentation could potentially be disclosed to third parties, without the corporate having an opportunity to confirm whether the impressions recorded are correct.

An indication of the possible approach of courts in the United Kingdom can be gleaned from a ruling in proceedings against Dennis Kerrison and Miltiades Papachristos (employees of Innospec)^[122] in which His Honour Judge Goymer considered whether a PowerPoint presentation to the SFO and the DOJ that referred to the notes of interviews conducted by the corporate with a prosecution witness amounted to a waiver of legal professional privilege in those interviews. The judge decided that there was not sufficient deployment of the interview notes in the PowerPoint presentation such as would amount to a collateral waiver of legal professional privilege in respect of those notes. It was conceded in argument that the PowerPoint presentation was subject to privilege, and as such there was no detailed discussion of the application of the principles of litigation privilege in this case.

This is not always so in the investigations context, following Three Rivers No. 5,^[123] although as stated above, the Court of Appeal decision in ENRC should provide more comfort that interview notes made during an investigation can be covered by litigation privilege if the ‘dominant purpose’ test is established. The Court of Appeal also considered the ambit of litigation privilege in one of the many cases relating to the SFO’s investigation into the Tchenguiz brothers, stressing the importance of the ‘dominant purpose’ test.^[124]

20.3 Legal considerations

Settlement negotiations should only be undertaken with a thorough understanding of the legal framework that governs the particular form of settlement pursued, and any relevant policies that govern the approach adopted by the relevant prosecuting authority. A number of relevant legal principles will also need to be borne in mind as crucial background context, regardless of the form of settlement pursued.

20.3.1 Legal professional privilege

Prosecuting authorities are increasingly requesting or encouraging corporates to waive privilege as a sign of their co-operation, or even as a precondition to concluding a settlement. The extent to which the prosecuting authority and a corporate may diverge in their interpretations or application of legal professional privilege (LPP) is dealt with in another chapter in this volume, but the appropriateness of putting pressure on a corporate to waive LPP is far from clear; particularly in the context of a multi-jurisdictional investigation, where a number of different legal systems may be in play, all with varying degrees of protection for lawyer–client communications.

The collateral damage to the corporate’s interests in other jurisdictions if LPP were to be waived could potentially be substantial and would need to be carefully considered before the corporate agreed to a global settlement involving a waiver on this basis. Attempts to resolve these difficulties by offering limited waiver may work but in practice are certainly not without risk (including, in particular, in relation to collateral waiver risks in jurisdictions that do not recognise limited waiver and in subsequent related proceedings, as demonstrated by the High Court’s decision in PCP Capital Partners LLP v. Barclays Bank Plc).

Care should be taken when considering disclosing privileged documents (e.g., to a regulator) and assessing whether a claim to privilege is properly made out on the facts. In State of Qatar v. Banque Havilland SA and others,^[125] the defendant bank disclosed a forensic investigation report to its Swiss and UK regulators under a limited waiver basis. The court found that the report was not privileged as it was not found to have been prepared for the dominant purpose of adversarial litigation (but rather fact-finding) and therefore it was unnecessary to consider whether there had been a waiver of privilege when disclosing to the regulators. However, the court did underline that it would have required a good deal of persuading that the circumstances in which the document was provided to the regulators meant that privilege in the report had been waived generally, therefore reflecting the English courts’ firm stance on the doctrine of limited waiver.

The SFO’s guidance on corporate co-operation^[126] states that a corporate that does not waive privilege and provide witness accounts will not attain the corresponding factor against prosecution found in the DPA Code, although the corporate will not be penalised by the SFO for electing against waiving privilege. This guidance also states that, if a corporate claims privilege during an investigation, the SFO will expect it to ‘provide certification by independent counsel that the material in question is privileged’. How this will work in practice remains to be seen.

20.3.2 Admissions

Unlike a plea agreement, the settlement of criminal proceedings by way of a CRO or DPA does not require the corporate to make formal admissions of guilt. However, the effect in practice of agreeing to a CRO or a DPA may be equivalent to an admission. An application for a CRO will be accompanied by a detailed statement of claim,^[127] and by agreeing to the CRO the defendant may be taken as confirming its agreement to the contents. Similarly, whereas an admission is not a prerequisite for a DPA, once the DPA is approved, the statement of facts on which it is based becomes admissible in subsequent proceedings in England and Wales (not limited to related criminal proceedings) as if it were the corporate’s admission of its contents. In the, G4S C&J DPA, Davis J opined that there is no material distinction between a conviction after an early plea of guilty and the admission made as part of the DPA.^[128]

Indirect admissions of this kind entail risk for both the corporate and any other persons concerned in the conduct. They could potentially be relied on by third parties in support of civil or criminal proceedings brought against the corporate, both in the United Kingdom and overseas. They are also likely to prejudice the position of any other persons concerned in the conduct, not limited to the corporate’s officers. This exposure increases the more extensive the indirect admissions are.

In negotiating the first UK DPA, the SFO considered it necessary for the statement of facts to be lengthy (55 pages) to put the judge in a position to approve the agreement on the most complete basis available. The other approved statements of fact published subsequently generally follow a similar approach, although they consistently contain slightly less detail and are shorter. Notably, the GSL DPA was accompanied by a particularly short statement of facts (17 pages).

A corporate could seek to avoid or at least mitigate some of these adverse consequences by concluding a settlement under which a subsidiary accepts liability and makes any necessary admissions, as in the MW Kellogg Limited CRO in 2011.^[129] Note, however, that a corporate will not be able to hide behind a subsidiary that has been set up as a vehicle through which a corrupt payment may be made so that the subsidiary can be abandoned if the corrupt payment comes to light.^[130]

Alternatively, a corporate could seek to negotiate a settlement under which an individual officer accepts liability instead of the corporate. However, if there is a prospect of a successful prosecution of the corporate entity, this may be unlikely to succeed. As a general matter, risk mitigation strategies of this kind are likely to be highly context-specific and subject to the willingness of the relevant prosecuting authorities to recognise the interests at stake.

20.4 Practical issues arising from negotiation of UK DPAs

DPAs have to date been made available only for a limited range of corporate economic offences prosecuted by either the CPS or the SFO. Statute governs eligibility for a DPA, its contents and the manner in which it is to be negotiated and approved, with limited discretion left to either the corporate or the prosecuting authority. This departure from the much more flexible US model complicates any predictions as to how frequently DPAs will be relied on in practice in the United Kingdom, but this section will consider practical issues arising from negotiating a DPA in the United Kingdom as part of a global settlement.

The legislation requires the judge hearing the application to be satisfied that a DPA is in the interests of justice (as opposed to prosecution of the corporate). The first four agreed DPAs, Standard Bank plc, XYZ Ltd (Sarclad), Rolls-Royce and Tesco Stores Limited, were all heard by Sir Brian Leveson, the former President of the Queen’s Bench Division, who (as is clear from the judgments) went to considerable lengths to satisfy himself that the proposed DPAs were in the interests of justice and that the terms were fair, reasonable and proportionate. Notably, in Rolls-Royce, he said that the involvement of prosecutors in different countries (in this case, the United States and Brazil) should not preclude a DPA in the United Kingdom, but the extension of criminality to these countries is relevant to the balancing exercise of whether the DPA is in the interests of justice.^[131]

Following Leveson P’s retirement in 2019, Davis J heard the fifth, sixth and eighth DPAs (Serco Geografix Limited, GSL and G4S C&J) whereas Sharp P heard the seventh DPA (Airbus). Both Davis J and Sharp P adopted a similar approach to Leveson P. Mrs Justice May heard the ninth DPA (Airline Services Limited) and the 11th and 12th (under reporting restrictions as at the time of writing), and Lord Justice Edis heard the 10th (AFWEL), and it appears that both again adopted a similar approach to Leveson P.

In the Standard Bank decision, Leveson P noted that the first consideration must be the seriousness of the conduct and, in this regard, emphasised that the potential criminality faced by the bank was the failure to prevent intended bribery committed by senior officers of a sister company. He also noted the SFO’s conclusion that there was insufficient evidence to suggest that any of Standard Bank’s employees had committed an offence.

Nevertheless, in both the Rolls-Royce and Airbus DPAs, the conduct of the companies was described as some of the ‘most serious’ breaches of criminal law (Rolls-Royce)^[132] and ‘grave . . . extending into every continent in which Airbus operates’ (Airbus),^[133] but DPAs were ultimately in the interests of justice because of the extent of other factors, demonstrating that, in certain circumstances, the seriousness of the conduct need not be a bar for a company looking to agree a DPA with the authorities.

Leveson P and Sharp P considered in particular the extent of the negative impact that a prosecution of the companies would have had on employees and others innocent of any misconduct such as pensioners or third-party suppliers – factors that were taken into account when balancing the public interest and interests of justice in ultimately approving the DPA. Airbus calculated that the financial impact of debarment would exceed €200 billion, and this could, according to a report that was commissioned by the company, decrease the gross domestic product of each of the United States, the United Kingdom, France, Germany and Spain by over €100 billion.^[134]

The public interest factors in Serco Geografix Limited also outweighed the seriousness of the offence, despite Davis J describing it as ‘a substantial fraud’ reflecting business practices ‘apparently ingrained in the company’ and that was compounded by the serious impact the conduct had on the integrity of outsourcing public functions to private companies.^[135] In Serco Geografix Limited and G4S C&J, Davis J expressed reservations about placing weight on the risk of mandatory debarment to support a DPA as this could involve the court making a quasi-political decision.^[136]

In Airbus, Sharp P distinguished between scenarios where the risk is of mandatory debarment (considered in Serco) as opposed to discretionary debarment (relevant in Airbus) coupled with either mandatory or discretionary debarment in other jurisdictions. Sharp P’s emphasis was not on the loss of contracts caused by debarment but on the consequential impact this would have on the company, its innocent employees, third parties and the economy.^[137]

Leveson P also attached considerable weight to the early report made by Standard Bank to the authorities. He also noted that the bank had made significant enhancements to its compliance policies and procedures since 2011 and that the bank, as at November 2015, was effectively a different entity from the one that had been involved in the events that were the subject of the DPA. Notably, these two factors were also critical in the other seven DPAs.^[138]

However, in Rolls-Royce, there was no self-report, the SFO having been prompted to ask questions of the company by public postings on the internet. Rolls-Royce’s co-operation with the SFO was praised by Leveson P, who found that the company could not have done more to expose its own misconduct, limited neither by time, jurisdiction nor area of business. It is this co-operation, in conjunction with extensive ethics and compliance measures and procedures that the company had put in place, and were committed to continuing, that was determinate in the agreement of a DPA, despite the lack of self-reporting.

In Serco Geografix Limited, Davis J also placed significant weight on the fact that Serco Geografix Limited was a dormant company, meaning that the obligations imposed on it under the DPA were of limited value, whereas the decision of its parent, Serco Plc, to provide undertakings ‘of genuine and substantial effect’ allowed the goals of the DPA to be achieved, which he described as an important development in the use of DPAs.^[139] The undertaking given by the parent company, G4S, to adopt the compliance measures across the whole group were in G4S C&J ’s DPA referred to by Davis J as being ‘of even greater significance’ since the subsidiary, G4S C&J, continued to be in operation in a substantial way.^[140]

DPA negotiations are held under strict confidentiality restrictions imposed by the SFO pursuant to the DPA Code of Practice. The Code of Practice requires the corporate entering into DPA negotiations to provide an undertaking in respect of the confidentiality of the fact the DPA negotiations are taking place.

What this means in practice is that third parties with whom the corporate needs to share the fact of the negotiations or any information relating to the DPA negotiations must sign a confidentiality undertaking. Any potential disclosure to the market has to be carefully considered and discussed with the SFO at an early stage (i.e., prior to the relevant obligation arising), and with the judge once an application to the court has been made.^[141] Rule 5.8 Criminal Procedure Rules 2015 stipulates that details of a court hearing must appear on the court list at most 48 hours before the court hearing, and the listing must include the names of the parties. This in itself may give rise to press and market speculation on the subject matter of the DPA and the size of the financial penalty. If an announcement is required, an application should be made to the nominated judge.

The legislation does not address anonymity of individuals in the statement of facts. Interestingly, the AFWEL DPA contains a note on its face highlighting that in the case, the court considered individual conduct only to assess the culpability of AFWEL: there was no other reason for the court to consider individuals’ involvement in the matter, and the court did not make any findings of facts against any individuals. There are protections afforded in US DPAs and in the course of FCA investigations by the third-party rights provisions, and by the ‘Maxwellisation’ process in public inquiries.

In Standard Bank plc, the conclusion reached was that those named on the draft indictment would be named, as would be the bank’s senior deal team member, but that the remaining individuals whose conduct was relevant to the factual narrative would remain anonymous. The potential consequences of the naming of individuals following the DPA’s publication can be seen in the fact that Ms Shose Sinare, one of the Tanzanian individuals allegedly responsible for the underlying offence in Standard Bank plc, has brought a civil claim against Standard Bank in the Tanzanian courts alleging, among other things, that she had a right to see and respond to the allegations in the statement of facts.

In both G4S C&J and Airbus, the anonymity of individuals involved was preserved to avoid any prejudice to the investigation into, and possible prosecution of, individuals.^[142]

Tesco Stores Limited, XYZ Ltd (Sarclad), Serco Geografix Limited,^[143] GSL and G4S C&J^[144] are the only cases to date where the SFO has pursued charges against individuals following entry into a DPA, although investigations remain ongoing in respect of Airline Services Limited, AFWEL and the two companies subject to the 11th and 12th DPAs (which remain under reporting restrictions).

The DPA judgment in Tesco Stores Limited was embargoed for almost two years pending the conclusion of the prosecution of the three former employees, owing to the risk of the details of the DPA undermining or prejudicing those proceedings.^[145] The first trial of the three former employees was abandoned after the former UK financial director suffered a heart attack. The former UK managing director and former UK food commercial director were retried and acquitted of all charges, after the trial judge ruled that they had no case to answer. The trial judge’s decision was upheld, in emphatic terms, by the Court of Appeal. Subsequently, the former UK financial director, who had been severed from the retrial, was acquitted of all charges after the SFO offered no evidence, and the embargo on the DPA was lifted on the same day.

Counsel for the three former employees had made representations to Leveson P, both before the DPA was approved and also before it was published, that the statement of facts should be published in a form that did not identify the three former employees, as it would be unfair for the individuals’ names and the conduct ascribed to them in the DPA to be publicly available in perpetuity when they had not been found to have committed any offence. On each occasion the request was declined, on the basis that the statement of facts had been ratified by that stage, and the legislation does not address anonymity of individuals.

XYZ Ltd (Sarclad) was anonymised on the basis that there were ongoing criminal proceedings arising out of the same facts; to avoid the risk of prejudice in those proceedings, the court ordered that the judgment providing full details of the parties involved only be made public following the conclusion of those proceedings.^[146] Sarclad was a small company and was charged with both substantive offences, requiring the application of the identification principle through the involvement of very senior former employees, and for the offence of failing to prevent bribery under the Bribery Act, which may have related to both agents and employees. On 16 July 2019, all three defendants were acquitted of all counts, and the judgment providing full details of the facts, the DPA and the statement of facts were published.

GSL followed a similar approach to Tesco Stores Limited whereby the DPA was agreed on 22 October 2019 but embargoed until the conclusion of the trial of three individuals, which took place two months later on 20 December 2019.^[147] In the DPA, GSL accepted liability for conspiring to make corrupt payments contrary to section 1 of the Criminal Law Act 1977 and section 1 of the Prevention of Corruption Act 1906 and for failing to prevent bribery by its employees contrary to section 7 of the Bribery Act 2010.^[148] As with the XYZ Ltd (Sarclad) and Tesco Stores Limited DPAs, the individuals were identified in the publicly available DPA judgment and the statement of facts and said to have committed criminal offences, despite having been acquitted of all counts.

The Tesco Stores Limited, XYZ Ltd (Sarclad) and GSL DPAs have led to strong calls from a wide range of practitioners and commentators that consideration be given to introducing mechanisms to protect the interests of individuals in the DPA process. A DPA is likely to take less time than a contested trial, so the basis of the DPA will normally be determined before any trial of individuals, which creates a risk that the findings of fact will differ between the two.

This risk arises whenever different people are the arbiters of fact, but it is heightened in these circumstances, as the DPA process requires close co-operation between the prosecutors and the company to agree on the facts, whereas a trial is a judicially overseen adversarial process in which the jury decides any issues in dispute. Additionally, the company may not have access to the evidence of the natural persons under investigation at the time of a DPA negotiation (e.g., the enforcement agency may have requested the company not to interview the individuals or the individuals may have refused to answer questions at interview, for fear of self-incrimination) and may only come to understand their position if they enter the witness box.

Rolls-Royce did not include the identities of the individuals involved in the criminal conduct for the same reason of avoiding prejudice to potential criminal proceedings.^[149] In addition to this, the court did not name the recipients of corrupt payments or bribes in certain countries on the basis that doing so could lead to action or the imposition of penalties that would be regarded in the United Kingdom as contravening Article 3 of the European Convention on Human Rights.^[150] The same approach was adopted in Airbus.^[151]

The Rolls-Royce DPA itself says that it does not provide any protection against prosecution of any present or former officer, director, employee or agent of Rolls-Royce, and further, Rolls-Royce is required to co-operate with the investigation and prosecution of the individuals involved in the relevant conduct.^[152] However, the SFO ultimately decided against prosecuting any individuals in the investigation.^[153]

The negotiation process in Standard Bank plc did not move as quickly as originally anticipated. It became apparent that an adversarial stance would not be appropriate in seeking to negotiate an agreement, and over time communications became more focused and more effective. It is also clear from the facts available that XYZ Ltd (Sarclad) and Rolls-Royce took considerable periods to resolve; so, while the process towards a DPA is likely to be shorter than a contested trial, it will probably still take a considerable period to agree and be approved.

Before the preliminary application is filed at court by the SFO, the corporate is required to provide a declaration regarding the information supplied to the SFO, as well as the declaration of the individual through whom the corporate made its declaration. The declarations are required to be made pursuant to the Criminal Procedure Rules 2015.^[154]

To provide comfort to the corporate and the individual, it may be necessary to follow a similar process to that used when individuals sign regulatory attestations – including understanding the documentation provided and questioning those involved in the data collection process. This is something to consider as early as possible in the DPA negotiations.

It is also clearly important to seek to ensure that the scope of any compliance review or monitorship is limited to the matters that are relevant to the circumstances of the case, as these can be intrusive, lengthy and costly exercises. The SFO in Airbus did not request the appointment of an external monitor as part of the DPA in light of the extent of Airbus’ reform to its compliance procedures and the fact that the French CJIP required ongoing monitoring of Airbus by the French state anti-corruption agency.^[155]

In global investigations and settlement discussions, it is essential to keep in close contact with other investigating agencies and, where necessary, to provide detailed explanations of the DPA process and the basis on which the statement of facts and DPA terms have been agreed.

20.5 Resolving parallel investigations

In the United Kingdom, historically civil proceedings were generally stayed pending the outcome of any parallel criminal proceedings. This approach was adopted by the High Court in PCP Capital Partners LLP v. Barclays Bank Plc who agreed to stay the civil proceedings against the bank pending the resolution of the SFO’s criminal proceedings against Barclays and former executives. The civil proceedings were stayed until the outcome of the criminal trial, which ended with the acquittal of the three defendants in February 2020 following a retrial. (The charges against Barclays were dismissed in May 2018^[156] and against the former chief executive officer, in April 2019.)^[157]

Courts consider this approach on a case-by-case basis, and the emphasis has increasingly moved away from the presumption of a stay. Specifically in the context of contemplated CROs, the current policy (set out in the Attorney General’s Guidelines on asset recovery)^[158] should prevent civil recovery proceedings from being pursued in parallel with criminal proceedings, although the Bruce Hall example discussed above demonstrates that there is no bar against such proceedings being pursued in tandem with criminal proceedings, provided the conduct that is the subject of the respective proceedings can be appropriately distinguished.^[159]

20.5.1 Other domestic authorities

We have already identified some of the difficulties of negotiating a truly ‘global’ settlement and their inherent limitations; many of which are equally relevant where there are multiple domestic authorities investigating the same conduct, and both civil and criminal proceedings are in contemplation. Corporates seeking to reach a settlement with other domestic authorities are likely to be assisted by agreements and memoranda of understanding (MOUs) already in place between the main authorities, including, for example, the MOU between the Competition and Markets Authority and the SFO,^[160] and the FCA’s Enforcement Guide.^[161]

The DPA agreed between the SFO and Tesco Stores Limited was coordinated with an agreement with the FCA that Tesco Stores Limited and its parent company, Tesco plc, had committed market abuse.^[162] Leveson P did not order Tesco Stores Limited to pay any compensation as part of the DPA as the SFO had said that this would not be a straightforward position; the SFO had not been approached by any investor seeking compensation; and Tesco plc and Tesco Stores Limited had previously agreed with the FCA to pay an estimated £84.4 million under a statutory compensation scheme. The UK criminal courts have historically been reluctant to determine complex issues of compensation, and this case demonstrates how DPAs can work in conjunction with regulatory arrangements to compensate victims.

20.5.2 Foreign authorities

The interplay of agencies becomes even more complex where foreign agencies are involved. The participation of UK authorities in global settlements has to date typically been driven by the US authorities, reflecting the relative ease with which US prosecutors can establish corporate criminal liability. However, the more recent example of Airbus, which was led from an early stage by the PNF, demonstrates that other investigating authorities may be more willing to take the lead in future global settlements.

One potential issue with having multiple agencies involved arises from divergent and sometimes conflicting requests from authorities, typically in connection with communications, disclosure of materials and confidentiality. The aim of any settlement negotiations should be to encourage one authority to take the lead, in accordance with any applicable guidelines or agreements concluded by the relevant authorities for this purpose.

20.5.3 Authorised disclosures and contacts

Any plea agreement or settlement negotiations will necessarily involve contact with and, where appropriate, the disclosure of confidential and privileged information to officers from the authorities for the purposes of reaching a settlement. In some instances, this can raise professional risks, particularly where such disclosure or contact was not expressly or implicitly authorised by the client.

In ENRC v. (1) Dechert LLP (2) David Neil Gerrard and ENRC v. The Director of the Serious Fraud Office,^[163] ENRC brought a claim against Dechert and its then partner, Mr Gerrard, for negligence, breach of fiduciary duty and breach of contract, and against the SFO, for inducing such breaches and misfeasance in public office. Dechert and Mr Gerrard had acted for ENRC in relation to an internal investigation into suspected fraud, bribery and corruption in Kazakhstan and Africa. The company claimed that Mr Gerrard had leaked confidential client information to the SFO (and the press), without authorisation, to expand the internal investigation greatly, with a view to generating significant legal fees. The judge ruled in favour, in part, of ENRC and found, among other things, that Mr Gerrard had recklessly breached his duty by having several unauthorised contacts with SFO officers. The judge found that the SFO officers were in breach of their duties by participating in the contacts and receiving information that was plainly unauthorised.

Although the case is very fact-specific, the judgment nonetheless highlights some of the professional issues that could arise from such engagements. At worst, ENRC will have a chilling effect on the prospect of the SFO entering into negotiations going forwards and may increase the SFO’s sensitivities surrounding any engagement with lawyers seeking a settlement on behalf of a corporate client.

Footnotes