Tesco Deferred Prosecution Agreement
Signs of tension with the CCA regime were already reported in 2015 following reports of an unsuccessful attempt by SFO to invite Barclays to DPA negotiations. It would appear that this approach is the result of the SFO`s 2012 investigation into Barclays` capital raising in 2008, at the height of the UK financial crisis. The SFO`s three-year investigation led to allegations that undisclosed payments totalling £2.4 billion were made to Qatari investors in 2008, while the Gulf state invested heavily in Barclays, an alleged deal that ultimately prevented Barclays from coming under state control. Barclays denied that there had been any criminality and went further by challenging the SFO`s requests for access to certain documents, which Barclays argued were covered by legal privilege. It is not known exactly when Barclays moved closer to the DPA negotiations, but given Barclays` attitude, it is unlikely that negotiations have started. The non-publication of certain documents runs counter to the line of cooperation; A cornerstone of any DPA negotiation. This, combined with the denial of any criminality, another important part of each DPA, would have prevented the establishment of an agreement. By the way, the SFO`s attempt to successfully prosecute Barclays for conspiracy to commit fraud and for providing illegal financial assistance was dropped when the charge was dismissed in May 2018. The SFO`s appeal to the High Court to take over the charge by a voluntary indictment also failed and officially ended the SFO`s prosecution. At present, the non-use of criminal offences relates only to the non-prevention of corruption under the UKBA 2010 and the failure to prevent aid to tax evasion provided for in sections 45 and 46 of the Criminal Finances Act 2017. There have been requests to extend the “omission of contraceptive offences” to other economic offences such as fraud. Lisa Osofsky, the new Director of the SFO, and the President of the Queen`s Bench Division and Chief Criminal Justice Officer, Brian Leveson, have committed to do so before the Lords Committee on the Bribery Act 20101, and the government has expressed its support.2 Nevertheless, changes in this area may depend on the Committee`s report. 3 Such a reform would make it easier for companies to prosecute offences such as fraud and could therefore convince companies to respond more easily to those offences.
At this stage, the Tribunal reviews the proposed agreement and is satisfied that there is a case to be answered and that the company has behaved in a manner consistent with a decision of the DPA and not with the prosecution. . . .