The Evolving Landscape of Deferred Prosecution Agreements

By Cameron Brown KC and Sam Smart

The June edition of Focus looks at the current state of DPAs in the UK. Cameron Brown KC (Red Lion Chambers) and Sam Smart (Mishcon de Reya) assess the increasingly likely use of DPAs as an alternative to trial and raise the issue that more needs to be done to assess the conduct of individuals in a company’s unlawful activity and whether or not to pursue criminal proceedings against them.

Introduction

The UK’s Deferred Prosecution Agreement (‘DPA’) regime is potentially entering a new phase for a number of reasons. First, the changing of the guard at the SFO, with Interim Director Graham McNulty QPM appointed after the departure of Nicholas Ephgrave QPM, who steadied the ship following the departure of Lisa Osofsky. Second, the CPS in 2023 entered the DPA arena in a substantive way, concluding the second largest ever DPA at £615 million. Third, a maturing body of case law and guidance has reshaped the requirements of corporate cooperation and arguably makes it more likely that Corporates will be invited into a DPA.

DPAs to date

While DPAs historically involved agreements running into the hundreds of millions, including the high-profile Rolls-Royce and Airbus settlements, most recent decisions involve more modest DPAs, demonstrating how the SFO’s strategy has potentially evolved. Following Standard Bank (2015), the first UK DPA, and XYZ Limited (2017), there followed a number of headline blockbuster cases including Rolls Royce (2017) and Airbus (2020), the largest DPA to date involving cooperation with a number of international partners. Since then, save for Amec Foster Wheeler (2023), DPAs have largely involved smaller settlements with smaller corporate bodies.

While prompt self-reporting has always been an important factor for any corporate wishing to be offered the opportunity to enter into a DPA, a failure to do so does not automatically mean that an invitation will not be offered. Furthermore, courts have been willing to approve a discount of 50% of the financial penalty element despite a lack of prompt self-reporting if the co-operation can be said to be “extraordinary”. For example, in the Rolls Royce DPA, this involved disclosing information to the SFO that it may not otherwise have discovered.

Recent decisions and emerging principles

More recently, the SFO’s DPAs have been smaller in size including a settlement of £14.8 million in the DPA of Ultra Electronics Holdings Limited (‘Ultra’) (including a penalty of £10 million, payable within 30 days) for failing to prevent bribery in the defence sector in Algeria and the Middle East.

As with other DPAs, in addition to the financial settlement the key factor is the corporate’s need to demonstrate “genuine and sustained reform” following misconduct. Initially the SFO withdrew from DPA negotiations in the Ultra case but re-engaged when there were significant changes to the company’s ownership, structure and leadership. The SFO considered there was a capacity to engage by the new leadership.

In Guralp Systems Limited, the High Court confirmed that such agreements remain enforceable after their stated expiry date when the financial terms remain unsatisfied. The expiry date was thus conditional on the terms of the DPA being fulfilled. The expiry date acted as an intended conclusion for compliant companies, not as a shield for non-compliant ones. A technical escape was not permitted, reflecting the public interest of such agreements and preventing companies from running down the clock to escape prosecution. The payment terms were enforceable commitments. The Court thus protected the integrity of the DPA corporate enforcement mechanism.

However, this was not perhaps the resounding success that it appears. After the DPA had been entered into, the three key individuals behind the alleged bribery were individually prosecuted. All were acquitted, in essence, based on the same facts set out in the agreed statement of facts that had led to the DPA. The question now remains whether the SFO can be satisfied there can be reasonable prospects of conviction in relation to the corporate.

What does the future hold for DPAs?

In assessing the appetite for DPAs, it is perhaps surprising to note that since the Act was introduced in 2013, only 13 DPAs have been entered into by the two main prosecuting agencies.

Now that the CPS have successfully dipped their toe in the water, achieving a substantial agreement, it will be no surprise if they enter into further DPAs, including smaller ones such as those recently undertaken by the SFO.

Furthermore, the chances of being offered the opportunity to enter into negotiations with the SFO have substantially increased following April 2025 when the SFO updated its co-operation guidance. It makes it clear that if a company self-reports promptly and fully co-operates with its investigation, the company can “expect” to be invited to negotiate a DPA, unless exceptional circumstances apply. The guidance includes a list of what amounts to co-operative or uncooperative behaviours. This includes preservation of digital and hard copy material, collecting and identifying material relevant to the investigation, presenting the facts on suspected criminal conduct and early engagement with the SFO on any internal investigation. Uncooperative conduct includes attempts to “forum shop” by unreasonably reporting offending to another jurisdiction for strategic reasons and attempts to minimise or obfuscate the involvement of individuals. The guidance makes it clear that a corporate that does not self-report but demonstrates exemplary co-operation may also be invited to negotiate a DPA.

There are further incentives to self-report, including contact within 48 hours of a self-report or other initial contact, a decision whether to open an investigation within six months of a self-report, commitments by the SFO to conclude its investigation within a prompt time frame and to conclude any DPA negotiations within six months of sending an invite. Furthermore, it will also be easier for corporates to report suspected wrongdoing by a direct route to the SFO’s intelligence division and a secure reporting portal.

Perhaps the biggest challenge for both the SFO and CPS is securing convictions of individuals in connection with conduct subject to a DPA. Only one successful conviction has been secured following a DPA, with prosecutions either not being undertaken or individuals being acquitted, sometimes following failings in relation to disclosure.

Cameron Brown KC is a tier 1 fraud silk and was instructed by the SFO in the Amec Foster Wheeler DPA.

Sam Smart is a Managing Associate (Barrister) at Mischon de Reya.

A fuller version of this article was first published in New Law Journal on 22 May, 2026. Please contact our Client & Business Development Director, Maurice MacSweeney, (Maurice.MacSweeney@18rlc.co.uk) if you would like a copy of the fuller version, or if you would like information of future events being organised by the Red Lion Chambers’ Fraud and Business Crime Practice Group.

Ed Vickers KC is the Editor of Focus.

Faras Baloch is the Editor of the RLC Fraud Newsletter.

If you would like to discuss issues raised in the Fraud Newsletter and Focus, or would like to suggest other thought-leadership pieces, please do get in touch. Members of the Red Lion Chambers’ Fraud and Business Crime Practice Group are keen to meet colleagues and subscribers to discuss topical issues in the practice area and deepen further our knowledge and skills.