Pillsbury Winthrop Shaw Pittman

Deferred prosecution deals and sentencing guidelines come to the UK

By Raymond L Sweigart

Although the perceived slow pace of investigations and prosecutions by the Serious Fraud Office (SFO) has come in for a great deal of commentary and criticism, it does appear that the SFO is slowly but surely ramping up its efforts and has now developed an even greater arsenal of weaponry to deploy. Currently, the SFO may opt to use civil recovery orders (CROs) in place of prosecution and has done so recently in a number of cases involving corporate crime. To that arsenal can now be added deferred prosecution agreements (DPAs). The UK government introduced DPAs through the Crime and Courts Act 2012 and they are expected to be available for use by the SFO and the Crown Prosecution Service (CPS) in February 2014.

Currently, CROs allow a UK enforcement agency such as the SFO to recover and confiscate the proceeds of a crime. They do not involve a criminal conviction and are intended to encourage corporations to self-report corruption and to co-operate with investigators. The use of CROs, however, has come under scrutiny by many, including a working group of the Organisation for Economic Co-operation and Development (OECD), which believes that the use of less transparent options such as CROs gives the impression that the SFO is not serious about the criminal prosecution of financial crimes and that corporate wrongdoers are somehow getting away with their crimes. With the availability of DPAs early next year, the SFO may turn away from CROs, although they will remain an option in the SFO enforcement arsenal…

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