In the light of the Airbus DPA, Transparency International and Spotlight on Corruption have written to Lisa Osofsky asking that SFO evaluates how DPAs are used to ensure the regime is fair and consistent and provides a real deterrence to corporate criminality. The letter points out that the DPA regime has been in place for nearly 6 years and the SFO has used DPAs 7 times. It calls on SFO specifically to look at:
- whether the regime is genuinely encouraging self-reporting, or whether in fact it creates perverse incentives for companies to wait until wrongdoing has been uncovered before they cooperate. It notes the clear shift away from self-reporting being a pre-condition for a DPA, and urges the UK to folow the US in ensuring that companies that do not self report but do provide exemplary cooperation cannot receive a discount in penalty of more than 25%;
- whether there is effective senior level accountability for corporate wrongdoing – and to explore a civil law means of bringing individuals to account if a criminal prosecution is not possible;
- whether the penalties applied reflect the full wrong-doing;
- whether the compensation principles are being effectively applied in DPAs;
- whether the DPA regime is transparent enough to engender public confidence – especially given the SFO has not taken a consistent line in publication of DPAs and related Statements of Facts. The letter urges that final approval hearings should always be in open court, with full reasoning open to the public, and that there should be full transparency on whether the full terms of a DPA have been met by the company; and
- whether the condition of the OECD Convention on “national economic interest” is being sufficiently respected – and suggests SFO might consider removing consideration of the impact of a conviction on the ability of a company to get public contracts from its Code of Practice.