Can DPAs represent a blanket solution?
Under the Crime and Courts Act 2013, Deferred Prosecution Agreements (DPAs) serve as an alternative to prosecution where deemed appropriate by a judge and in the public interest. While companies do not have a statutory duty to self-report, the new guidance outlines self-reports that constitute a “key consideration” in the SFO’s assessment of a company’s cooperation.
In his speech at the GIR Conference on 24 April 2025, the SFO’s Director outlined that self-reports offer a “cast-iron guarantee” that companies will be invited to negotiate a DPA. The SFO’s attempt to pursue DPAs as an almost guaranteed option to settle outside of court may raise concerns about the need to conduct a case-by-case assessment of public interest.
While a DPA can carry significant financial consequences for corporates, it may be perceived as an attempt to prioritise financial settlements over preserving the accountability of companies facing criminal prosecutions. Undoubtedly, the regulator will face significant challenges when seeking to establish that the use of DPAs is proportionate and in the public interest in cases involving serious criminal conduct or corruption.
The new guidance makes it clear that if a company self-reports promptly to the SFO and cooperates fully, it will (in the absence of exceptional circumstances) be invited to negotiate a DPA. On the other hand, a company that has not self-reported but has, nevertheless, shown exemplary co-operation may be invited to negotiate a DPA.
The importance of prompt self-reporting
The new guidance outlines the SFO’s pledge to adopt an expedited time frame to resolve investigations and proactively engage with self-reporting companies.
- Timely communication: The SFO will contact the reporting company within 48 hours of receiving the self-report, using a secure method.
- Prompt decision-making: The SFO will decide whether a formal investigation will be opened within six months of receiving the self-report.
- Rapid resolution: The SFO will endeavour to conclude the DPA negotiations within six months of being initiated.
The SFO Director emphasised that there are no hard rules regarding the timing of a self-report. While the SFO recognises that companies may wish to examine the nature and extent of potential wrongdoing before coming forward, it does not expect them to carry out a full investigation beforehand. The reasonableness of the timing will be assessed on a case-by-case basis.
The guidance also explains how companies should approach self-reporting and what information should be included. It makes clear that submitting a Suspicious Activity Report (SAR) or reporting to another agency – in the UK or abroad – will not be counted as a self-report by the SFO.
Expectations for corporate cooperation
The degree of cooperation expected has previously been the subject of debate. The SFO guidance clarifies what companies should and should not do to be regarded as being cooperative when seeking to obtain a DPA. In particular, the following actions would be regarded as cooperative conduct:
(1) Early discussion about the parameters of an internal investigation with the SFO and not taking steps that might prejudice the SFO’s subsequent investigation.
(2) Voluntarily waiving legal privilege over relevant materials; however, the SFO makes it clear that choosing to maintain a valid claim to privilege won’t be held against the company.
(3) Acting quickly to preserve evidence and identify or produce overseas documents that are within the company’s control.
(4) Avoiding conduct that could be considered uncooperative, such as seeking to gain a strategic advantage by reporting to another jurisdiction first (known as ‘forum shopping’) or tactically delaying the sharing of information or overloading the SFO with large amounts of unnecessary material.
The guidance also emphasises that cooperation must be “genuine” as soon as there are ‘reasonable suspicions’ of wrongdoing, and must go beyond simply meeting legal requirements. Companies are expected to be transparent about all facts and engage with the SFO in a proactive way.
Conclusion
The SFO’s updated guidance signals a move towards a more structured and pragmatic approach to enforcement, with the intention of easing the time and financial burden associated with long-standing investigations.
While DPAs play a significant role in encouraging companies to come forward early, their widespread use in complex cases may raise concerns around accountability.
It remains to be seen whether the SFO will be able to effectively rely on DPAs to uphold its commitment to expedite investigations.
To find out more about the guidance, please visit the SFO’s official website.
Client Alert 2025-135
