Lawyer Monthly Magazine - May 2019 Edition

false accounting if an individual who embodies that company - known as the ‘directing mind and will’ - commits an offence, the DPA could only proceed on the basis that senior individuals had committed the crime. In this case, the SFO and Tesco agreed on a DPA based on three senior executives being the wrongdoers. It was on this same basis that the SFO prosecuted the three senior executives from the company. Following a first trial which ended prematurely as a consequence of serious health issues for one of the defendants, my client and his co-accused John Scouler were tried together at Southwark Crown Court at the end of last year. As their case progressed, it became clear that the SFO’s narrative - on which the DPA As a consequence, DPAs should come with a serious health warning for those who are running companies under investigation by the SFO. was based - was not supported by the underlying evidence. The prosecution’s account of what happened had been agreed by the SFO and Tesco but it did not stand up to the rigorous test of a criminal trial against the individuals. At the end of the prosecution case, the very experienced trial judge Sir John Royce agreed that there was insufficient evidence to leave the case to a jury. The Court of Appeal endorsed this decision and both defendants were acquitted. The SFO subsequently offered no evidence against the third defendant in January this year. This was a very unusual outcome as it was completely at odds with the narrative on which the DPA was based. It resulted in the extraordinary situation in which three men were acquitted of all wrongdoing, but were named as guilty parties in the DPA. For there to be a DPA, senior individuals within the company had to be guilty and this was the basis on which the SFO proceeded. The ‘not guilty’ verdicts in the criminal trial demonstrate the shortcomings of this. They raise the question whether these men would have been charged at all if there had not been such a focus on securing a DPA. The Tesco case was the first time that the factual basis of a DPA has been tested in a criminal trial. It failed. Not only were the defendants acquitted when the prosecution case was shown to be too weak to put to a jury, but having been acquitted, they were powerless to prevent the claims against them in the DPA from being published. DPAs are here to stay. However, directing minds within a company are at real risk of being unfairly blamed for wrongdoing when this is necessary to land a DPA. As a consequence, DPAs should come with a serious health warning for those who are running companies under investigation by the SFO. LM FIRM PROFILE Ross Dixon has more than 20 years of experience as a criminal litigator and has been described in Legal 500 as “highly intelligent, committed and approach- able. One of the best criminal defence solicitors around”. He has a thriving white collar fraud and cor- porate crime practice and is regularly instructed in some of the highest profile cases in this field. CONTACT Ross Dixon Partner 21 www. lawyer-monthly .com MAY 2019 hickmanandrose

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