A deferred prosecution agreement (‘DPA’) is a construct of ‘win-win’ pragmatism. Both the prosecuting authority and subject of the agreement can hail a favourable outcome.
They were introduced in 2014 to allow for the suspension of criminal prosecutions against corporate bodies for certain alleged economic crimes on the proviso that certain judge-approved conditions are met. If the subject complies with all the DPA obligations contained the matter is concluded without prosecution. A breach of those conditions can result in its resumption.
On 5th December 2023, the CPS entered into its first ever DPA. Perhaps somewhat unsurprisingly, the SFO has negotiated all twelve of the UK’s preceding DPA’s. This case, in fact, arose out of an HMRC investigation. The company in question was the London-headquartered Entain plc (previously named GVC Holdings), a global online sports betting and gaming business (owner of Ladbrokes and Coral bookmakers) that allegedly failed to have adequate procedures in place to prevent bribery contrary to Section 7 of the Bribery Act 2010 between July 2011 and December 2017. The alleged offences occurred in connection with the operation of the Turkish facing business.
Under the DPA, Entain agreed to pay a total of £615 million comprising a financial penalty plus disgorgement of profits totalling £585 million, a charitable donation of £20 million and a contribution of £10 million to CPS and HMRC costs. This is the second largest DPA ever recorded in the UK and was approved by the President of the King’s Bench Division, Dame Victoria Sharp DBE no less. Concluding the DPA was in the interests of justice, the judge indicated in her judgment summary that Entain’s cooperation with the CPS and HMRC during the course of the investigation had been exemplary and there had been a complete overhaul of their compliance procedures.
Announcing the agreement, SEOCID Chief Crown Prosecutor, Andrew Penhale has also provided some encouragement to others who may wish to come forward, saying “The wider gaming industry may wish to reflect on the implications of this agreement for their own corporate compliance procedures and, where appropriate, take action to address and report any failings they identify. The CPS will continue to work closely with law enforcement partners in this area, such as HMRC, as well as the industry regulator, the Gambling Commission”.
The team of barristers from these Chambers who acted for the CPS (Jane Bewsey KC, Cameron Brown KC and Hal Watson) has broken new ground with this carefully negotiated outcome. Not only does it demonstrate a willingness by the CPS to get involved in DPA’s but also to use them innovatively. Here, Entain agreed to donate £20 million to charity. It may even provide a glimpse of the shape of things to come so far as allegations of significant corporate wrongdoing are concerned. No doubt the government will increasingly look to deploy cost-effective mechanisms, such as DPA’s, to combat the blight of top-end corporate economic crime. Unquestionably, such agreements obviate the need for long and costly prosecutions. Arguably, they also foster a culture of greater corporate compliance, self-reporting and co-operation. Win-win.