Peaks and Troughs of the U.K. Deferred Prosecution Agreement: The Lesson Learned from the First-Ever DPA between the SFO and ICBC SB PLC

Abstract

Schedule 17 of the Crime and Courts Act 2013 introduced Deferred Prosecution Agreements (DPAs) into the English legal system. On the 30th of November 2015 the Industrial and Commercial Bank of China Limited entered into the first-ever deferred prosecution agreement in the U.K. with the Serious Fraud Office. It represents a historic turning point for the English legal system as well as an innovation that has the potential to revolutionise the approach to corporate criminal liability traditionally adopted in the United Kingdom. This paper analyses the legislative provisions under Schedule 17 of the 2013 Act dealing with its most problematic aspects and drawing comparisons with the corresponding legal instruments developed in the U.S. It also investigates the reasons behind the DPA implementation in England and Wales focusing on the growing pressure that was exerted on the authorities to carry out successful investigations against corporations involved in criminal activities. Finally, the paper offers an analysis of the first-ever DPA concluded in the U.K. highlighting the most controversial legal issues arising from such an agreement. This can be considered a landmark decision not only because the SFO's first application for a DPA was approved by the judiciary, but also because it was the first time in which a legal entity was charged in England and Wales with the offence of "failure of commercial organisations to prevent bribery" as provided by section 7 of the Bribery Act 2010.

Keywords: Deferred Prosecution Agreement; DPA; corporate criminal liability; identification principle; identification doctrine; bribery; corruption; inheritance of corporate liability; deterrence in corporate punishment; anonymity; international ne bis in idem; Standard Bank; ICBC; Serious Fraud Office

JEL Classification: K1, K2, G3, K14, K42, K22, G34