BCL partner, Richard Sallybanks spoke to William Shaw of Law360 about the flaws in the use of deferred prosecution agreements (DPA) following his client’s (Mr Scouler, Tesco’s Former Commercial Food Director) acquittal from the case brought by the SFO but yet he was still named in the statement of facts released to the public.

Below is a short excerpt from the article* that can be found in full on the Law360 website.

“Anyone can agree anything and put it in a document, but it doesn’t mean it’s a fact or it’s true,” Richard Sallybanks, a partner at BCL Solicitors LLP and Scouler’s lawyer, said. “The problem here is that Tesco and the SFO have agreed that these three people were acting dishonestly when a court has found that they weren’t.”

DPAs enable companies to avoid the risk of prosecution in return for admitting culpability and agreeing to pay a penalty. They were introduced in 2014 under the Crime and Courts Act.

The SFO released the 23-page document after reporting restrictions were lifted at the Crown Court. The decision has raised eyebrows among defense lawyers, who point out that the agency’s claims have been dismissed by a court and could have a serious impact on the men’s working lives in the future.

“It’s very unfair on the individuals who have already had the adverse publicity that comes with being a suspect and on trial in a case of this profile,” Sallybanks said.

Tesco agreed under the terms of the DPA to pay a £129 million ($168 million) penalty. It is the fourth to be agreed in Britain after the SFO reached similar deals with ICBC Standard Bank PLC and Rolls-Royce. It reached another with a company identified only as XYZ.

Sallybanks said the SFO should consider how it records the facts underlying agreements in the future. He added that the law governing DPAs offers no possibility of redress to the men. The Tesco three had urged Judge Brian Leveson, who is Head of Criminal Justice, to redact their names from the document before it was released. But Judge Leveson, who approved the original agreement in April 2017, said he had no jurisdiction to change the terms.

Richard Sallybanks is a partner at BCL Solicitors LLP specialising in complex business crime and regulatory defence work. Richard has been involved in numerous SFO, FCA, HMRC & CMA investigations and prosecutions, together with associated restraint and confiscation proceedings. His recent SFO experience includes the Alstom, Barclays Qatar, and Tesco investigations (acting for senior individuals under suspicion), as well as acting for Robert Tchenguiz in the SFO’s Kaupthing Bank investigation (including the successful Judicial Review challenge to SFO search warrants). Richard has acted in a number of FCA criminal and regulatory investigations for brokers, traders and senior executives, including in relation to allegations of insider dealing and market abuse. He is experienced in cartel investigations, both domestic investigations conducted by the CMA and cross-border anti-trust investigations (including those conducted by the US DoJ). Richard is also experienced in the international mutual legal assistance regime, and in leading and co-ordinating teams of lawyers in multi-jurisdictional investigations.

*This article was first published by Law360 on 24th January 2019. Full details can be found here.