5.1 Leave if implicated

The position of (particularly senior) individuals implicated in the underlying wrongdoing for which the DPA is negotiated, in respect of their ongoing position within the company, appears to be becoming clearer as the DPA provision is increasingly used. Within the DPA Code published in 2014, it was outlined that a public interest factor against prosecution (and thus in favour of DPA) would be that the company seeking a DPA ‘is effectively a different entity from that which committed the offences’.1 An example given is the complete reform of the company's management team, with a focus on how the company may have sanctioned culpable individuals: disciplinary action ‘has been taken against all’ (emphasis added) those culpable, with dismissal in appropriate circumstances.2 This suggests that there is not a demand upon dismissal of those culpable where disciplinary action would suffice; this is likely to depend on the extent of involvement in the wrongdoing and thus will likely also consider the seniority of the individual. Six years on, the SFO reiterated this factor against prosecution in its new SFO Operational Handbook chapter on DPAs, though with more discretionary language. It stated that the company's management team ‘may have been completely changed’ and ‘disciplinary action may have been taken against all the culpable individuals’ (emphasis added).3