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Harry Cassin
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Richard L. Cassin
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SFO: DPAs are a chance to live your corporate values

Ben Morgan, joint head of bribery and corruption at the UK Serious Fraud Office, spoke at this year’s Global Anti-Corruption and Compliance in Mining Conference in London. He talked about the benefits of cooperation (sound familiar?).

One reason for cooperating, he said, is the chance to enter into a Deferred Prosecution Agreement and enjoy its benefits.

Here’s part of what Morgan said:

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If you have a problem somewhere in your network and you are prepared to engage with us honestly then we can have a different relationship.

The Deferred Prosecution Agreement regime provides a structure for those wanting to resolve their criminal liability to do so quickly and with a degree of control and certainty largely absent from traditional prosecution.

A DPA responds to criminal liability — as I said, no cosy deals — so don’t be under any illusion. In a process scrutinized by a Crown Court judge, criminal proceedings will be commenced against the organization but immediately suspended pending compliance with the terms of the agreement.

Those terms can pack a hefty punch too — a fine, compensation, remedial measures, in some cases a monitor and other possible terms. But it has a lot going for it too — speed and certainty, as I have said; a level of compatibility that enables us to get a bit closer to that hallowed ground of a global resolution for conduct that crosses borders, as I suspect much of the activity in your sector inevitably would; and also the chance to really live your corporate values — integrity around facing up to what’s gone wrong and putting it right rather than being on the back foot, having to be defensive.

That’s a much better message for your stakeholders is it not? — employees, customers, shareholders, potential investors, the media, regulators even. You could show that it isn’t just rhetoric: that the “tone from the top” means something in real life in your business, not just on paper.

And while it’s not my area of expertise, from attending conferences like this one I always get the impression that the way you talk about compliance and ethics now isn’t about moral high ground, nor about threat even, but actually about adding commercial value. Well if that’s right, I put it to you that genuine engagement with us is the consistent extension of that message; the appropriate and commercial way to fix problems that your well-considered compliance procedures identify.

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Ben Morgan’s complete remarks at the Global Anti-Corruption and Compliance in Mining Conference in London on May 20, 2015 are here.


Richard L. Cassin is the publisher and editor of the FCPA Blog. He can be contacted here.

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