B P Collins’ criminal team considers whether DPAs are a pragmatic tool of economic crime enforcement — or a Parliament-endorsed bargain that looks uncomfortably like a payment for protection from prosecution.
The Serious Fraud Office has an unenviable task. It is expected to investigate and prosecute some of the most complex fraud, bribery and corruption cases in the country, often involving multinational businesses, offshore structures, vast disclosure exercises and well-funded defence teams. Its purpose is to police the standards by which business is conducted and to ensure that serious economic crime is met with serious consequences.
Yet there is an uncomfortable contradiction at the heart of the modern corporate crime landscape. The SFO prosecutes bribery and corruption, but also operates a statutory mechanism under which large companies can pay substantial sums of money and avoid a criminal prosecution. That mechanism is the Deferred Prosecution Agreement.
A Deferred Prosecution Agreement, or DPA, is an agreement between a prosecutor and an organisation which could otherwise be prosecuted. If approved by the court, the prosecution is suspended for a defined period provided the organisation complies with specified conditions. DPAs can be used in cases involving fraud, bribery and other economic crime, but they apply to organisations and not individuals. They were introduced under Schedule 17 of the Crime and Courts Act 2013 and are available to the SFO and CPS.
In theory, the DPA regime is a pragmatic and sophisticated enforcement tool. It enables a company to make reparation, pay a financial penalty, cooperate with investigators and reform its compliance systems, without the potentially catastrophic consequences of a full corporate conviction. Judicial approval is required, and the court must be satisfied that the proposed DPA is in the interests of justice and that its terms are fair, reasonable and proportionate.
But however lawful and carefully regulated the process may be, the public perception is harder to ignore. A company accused of serious economic crime pays a large sum of money. In return, the prosecution is suspended and, if the company complies with the agreement, it avoids conviction. In ordinary language, that can look very much like money being exchanged for protection from prosecution.
Of course, legally it is not a bribe. It is a statutory settlement approved by Parliament and supervised by the judiciary. But the more uncomfortable question is whether Parliament has created a lawful structure which, stripped to its practical effect, resembles the very corruption the SFO is tasked with condemning.
The Optics of Corporate Cooperation
The SFO’s own materials describe DPAs as a way for a corporate body to make full reparation for criminal behaviour without the collateral damage of a conviction. The stated benefits include avoiding lengthy and costly trials, securing transparency and ensuring corporate reform.
That rationale has force. Prosecuting large companies is expensive, time-consuming and uncertain. A DPA can secure money, admissions, cooperation and compliance reform more swiftly than a contested trial. It may also avoid damaging innocent employees, shareholders, pension funds and customers who had no involvement in the wrongdoing.
However, the difficulty lies in the imbalance between corporate and individual accountability. In a number of DPA-related cases, companies have admitted wrongdoing or accepted statements of fact, while individual prosecutions have failed, collapsed, or resulted in acquittals. Güralp Systems is a striking example: the company entered into a DPA. The SFO sought to enforce this as the company failed to pay. They prosecuted 3 of the most senior members but the individuals charged in relation to the alleged conduct were acquitted by a jury. This shows that whilst DPA’s may be agreed they do not necessarily offer the level of immunity some believe in some instances.
Similar concerns have arisen more broadly in relation to the SFO’s record of securing individual accountability following corporate settlements. It has been noted following DPA-linked prosecutions that the SFO’s difficulty in securing convictions of individuals connected to corporate DPAs, including cases where individuals were acquitted or proceedings encountered serious disclosure difficulties.
This gives rise to a troubling question: if a company can pay its way out of prosecution, but the individuals said to be responsible are not convicted, who has actually been held accountable?
A Two-Tier System?
The concern is not that DPAs are unlawful. They plainly are not. The concern is whether they risk creating a two-tier system of criminal justice.
An individual accused of dishonesty cannot usually negotiate an arrangement whereby they pay a substantial sum, promise to behave better and avoid prosecution. Small businesses rarely have the leverage, resources or legal infrastructure to negotiate complex settlement terms with the state. Large corporations do.
That creates the impression that the better resourced the suspect, the more likely it is to access a commercial resolution rather than a criminal trial.
For corporate defendants, the language is one of cooperation, remediation and compliance reform. Had Guralp paid the amount requested in the DPA, the individuals would not have been prosecuted. For individuals, the language remains charge, trial, and potentially conviction and sentence particularly for those lower down the hierarchy. That distinction may be legally justified, but it is not always morally satisfying.
The Parliament-Endorsed Framework
The DPA regime is a deliberate creation of Parliament. Schedule 17 of the Crime and Courts Act 2013 provides the statutory architecture. The DPA Code of Practice provides guidance on when a DPA may be appropriate and the factors prosecutors should consider.
It means the SFO is not acting outside the law when it enters into DPAs. It is using a tool specifically given to it. But that is precisely why the issue deserves scrutiny. If the state creates a mechanism through which money can influence whether a prosecution proceeds, then the state must accept that the arrangement will attract criticism. It is not enough to say that the process is lawful. Many things are lawful. The harder question is whether they are just.
In April 2025, the SFO issued new corporate self-reporting and cooperation guidance indicating that, where a corporate self-reports suspected wrongdoing and cooperates fully, it can expect to be invited to negotiate a DPA rather than face prosecution, unless exceptional circumstances apply.
That guidance may encourage transparency. But it also sharpens the criticism. If the message to corporate Britain is “come forward, cooperate and pay, and prosecution may be avoided”, then the SFO must be alive to the reputational risk that it appears to be selling leniency.
The Bribery Paradox
There is an irony in the SFO policing bribery while operating a system that can appear, at least superficially, to reward payment as a route away from prosecution.
In bribery cases, the mischief is often the use of value to obtain an advantage. In DPA cases, a company pays significant sums and obtains a very valuable advantage: the avoidance of a criminal conviction.
The legal distinction is obvious. A bribe is corrupt and unlawful. A DPA is transparent, court-approved and statutory. But public confidence in justice depends not only on technical legality. It also depends on whether the system appears principled, equal and consistent.
If the public sees companies paying large sums while individuals are acquitted, not charged, or left carrying the burden of prosecution, confidence is inevitably strained.
DPAs may be necessary. They may be commercially sensible. They may even be the most effective way of extracting money, cooperation and reform from corporate offenders. However the SFO and Parliament should not be surprised when professionals, commentators and the public ask whether the system has gone too far.
A justice system that allows wealthy corporate defendants to avoid prosecution through negotiated financial settlements must be prepared to justify itself. It must explain why this is not simply a privileged route out of criminal liability. It must demonstrate that senior decision-makers are not being insulated while companies absorb wrongdoing as a cost of doing business and show that justice is not merely being monetised.
In seeking to police corruption, it has embraced a model that can look remarkably like a state-endorsed payment for protection from prosecution. That may not be bribery in law. But to many, it may look uncomfortably close to bribery in all but name.
For more information and if you have a concern regarding Deferred Prosecution Agreements (DPA’s), please contact our criminal law team in confidence by emailing enquiries@bpcollins.co.uk or calling 01753 889995.
