Michael Bowes QC & Judy Krieg analyse DPA procedure
Through his article for this month’s IBA Anti-Corruption newsletter, Michael explores concerns about the DPA procedure and makes a detailed analysis of both the transparency of the DPA investigative process and the potential unfairness in the naming of third parties.
As a starting point, Michael and the co-author remind the reader about the first DPA that has been approved by an UK Court, in a case related to the failure of Standard Bank PLC to prevent bribery in Tanzania. This case’s circumstances “give rise to two legitimate general concerns, namely the level of transparency in the investigative process leading to a DPA, and the fairness of naming a person as being guilty of bribery in circumstances where that person has not been tried for that offence and has had no opportunity to make counter representations either to the SFO or the court” the authors assert.
The article emphasises that before the SFO opens a DPA negotiation, a two-stage mandatory test must be applied for the transparency of the investigative process: the evidential stage and the public interest stage. Procedural aspects of both the UK and the US practices are covered within the analysis.
In terms of naming third parties, the article shows that “(t)he DPA procedure does not have any mechanism by which a person named in a DPA as having committed a criminal offence may make representations to the prosecutor or the court before (or after) a DPA is published“.
Michael and the co-author conclude by saying of the DPA procedure that it ‘is controversial’ and suggest that if it ‘is to gain and hold the trust of the public, it must be fair to all those involved, including the victims of corruption’.
The full article is available at page 35 of this month’s IBA Anti-Corruption newsletter.
Barristers: Michael Bowes QC