Response from Matthew Wagstaff, Joint head of Bribery and Corruption Division, Serious Fraud Office
Jonathan Pickworth’s suggestion that a deferred prosecution agreement (DPA) “will not even be offered unless the company has agreed to waive privilege as part of its co-operation” is entirely without foundation (“A blessing or a curse?”, NLJ , 5 February 2016).
The Serious Fraud Office has been very clear that, while co-operation will indeed play a significant part in its decision-making when deciding whether to invite a corporate to enter into DPA negotiations, we do not require companies to waive privilege in order to demonstrate that co-operation. Indeed, the assertion that the DPA Code of Practice expressly reflects this “requirement” is simply wrong.
Paragraph 3.3. of the code expressly provides that neither the Crime and Courts Act 2013 nor the code itself alters the law on legal professional privilege. In fact, the code does no more than make it clear that what prosecutors are interested in is the underlying factual material. This is evident from para 2.8.2.i. of the code which provides, in part: “Co-operation will include identifying relevant witnesses, disclosing their accounts and the documents shown to them. Where practical it will involve making witnesses available for interview when requested. It will further include providing a report in respect of any internal investigation including source documents.”
See further: A blessing or a curse? Pt 2
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