On 30 November 2015, the English Court approved the first Deferred Prosecution Agreement ("DPA") in the UK between the Serious Fraud Office ("SFO") and Standard Bank ("SB"). The Court concluded that the DPA was in the interests of justice and its terms were fair, reasonable and proportionate.
The SB offense relates to a $ 6 million payment in March 2013 by a former sister company of SB to a local partner in Tanzania, which the SFO alleged was intended to induce members of the Government of Tanzania to show favor to SB. The terms of the DPA provide that SB will pay to HM Treasury a total of $25.2 million (consisting of a financial penalty of $16.8 million and $ 8.4 million disgorgement of profits) and will pay the Government of Tanzania a further $ 7 million in compensation. SB will also pay the SFO's reasonable costs of £330,000 in relation to the investigation and subsequent resolution of the DPA. In addition, SB will be subject to an independent review of its existing anti-bribery and corruption controls, policies and procedures regarding compliance with the Bribery Act 2010 and other applicable anti-corruption laws and will be required to implement recommendations of the independent reviewer.
As a result of the DPA, the charge against SB has been suspended for three years. SB also agreed to a statement of facts, which it will not contest in any future proceedings. After the expiry of the three year period, and provided that SB complies with the terms of the DPA, the SFO will discontinue the proceedings.
It is likely that further DPAs will be announced over the course of this year and David Green, the Director of the SFO, has stated that the SB DPA will serve as a template for future agreements. Green has, however, cautioned that "significant cooperation from the company will be required to convince the overseeing judge that the agreement is fair and just." For example, Green highlighted that the SFO would not advocate a DPA unless the company concerned has shown the maximum amount of cooperation (including, potentially, waiving privilege over certain documents). Similarly, Ben Morgan, the SFO's joint head of bribery and corruption, made it clear that a prerequisite of a DPA is that the company concerned should make early and full disclosure to the SFO. In SB's case, the SFO was complimentary of SB's conduct in promptly bringing the offense to the SFO's attention.
This particular DPA is also significant as it follows the first indictment brought by the SFO against a corporate body alleging failure to prevent bribery contrary to section 7 of the Bribery Act 2010. The SB DPA contrasts with the subsequent case of Sweett Group PLC, which became the second company charged under section 7 of the Bribery Act in relation to conduct in the Middle East. Sweett Group subsequently pleaded guilty to that offense and sentencing will take place on 12 February 2016.
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