The High Court has confirmed that individuals whose alleged conduct forms the basis of UK deferred prosecution agreements may be named in the Court's judgment approving those settlements.

Background

In 2021, the Serious Fraud Office ("SFO") entered into a deferred prosecution agreement ("DPA") with Bluu Solutions Limited ("BSL"). The DPA has now expired as BSL complied with its requirements. It brought to an end an investigation by the SFO concerning bribery in office outfitting contracts. The SFO's investigation (and the consequential DPA) was based on the alleged conduct of several former senior executives, including former director Mr Robb Simms-Davies. Neither he nor any other individuals have been convicted of any offences in connection with the conduct described in the DPA.

Neither the DPA itself nor the accompanying statement of facts named Mr Simms-Davies, instead referring to him as "Director 1". However, May J, who approved the DPA, took a different approach. She ordered that a de-anonymised version of her judgment naming him should be published following the conclusion of criminal proceedings against individuals including Mr Simms-Davies. Those proceedings ended with his acquittal in 2023. 

Mr Simms-Davies challenged that decision by way of judicial review, arguing that it would cause unwarranted damage to his reputation by linking him to misconduct in respect of which he has been separately acquitted. The High Court has now rejected that challenge.

Why did the Court decide that individuals should be named?

The High Court's judgment emphasises that any deviation from the principle of open justice must be justified, and, as in this case, may not be permanent. While the Court approving the DPA was prepared temporarily to restrict disclosure of the names of individuals subject to parallel criminal proceedings, its principal rationale for doing so was fairness in those proceedings rather than safeguarding those individuals' reputations. May J found that the potential reputational harm of identification "must be negligible" where it was made plain that her DPA judgment made no findings of fact.

May J's approach was also informed by practical considerations – she noted that continued exclusion of the former director's name would be "simply confusing, and pointless" given the ease with which the DPA documents can be linked to the named individuals in the publicised criminal proceedings.

Some key concepts underpin May J's approach and observations, now endorsed by the High Court. One is that DPAs are distinct from proceedings which may be pursued against individuals. DPAs reflect factual matters agreed between prosecutors and corporates. They are not determinative or reflective of whether individuals have committed offences.

Another is that courts approving DPAs do not simply "rubber stamp" proposed DPAs. Rather, their function is to examine carefully whether a proposed DPA is in the interests of justice, and if so clearly to advertise to the wider world why this is so. Judges regard this as a critical task that maximises the credibility of DPAs and demonstrates that DPAs appropriately cover all alleged conduct for which the corporate concerned could otherwise have been held criminally liable. This case illustrates that courts will consider naming individuals to be justified in some cases in pursuit of these objectives.

What does the decision mean for transparency in future cases?

Some questions remain about where judges will draw the line when deciding whether it is necessary to name individuals when considering DPAs in future cases. The High Court decided not to express a view on whether individuals who are suspects in investigations but who have not been charged with any offences should be named in DPA judgments. The door remains open for judges in future cases to do so.

For corporates considering seeking to enter into DPA negotiations, several key messages emerge from this case.

The first is that an agreement between corporates and prosecutors on particular terms is one matter, but judicial approval of proposed agreements is another. Corporates should not expect the suite of documents placed in the public domain when a DPA is approved to be homogeneous. The divergence between the approach taken to the drafting of the DPA and statement of facts (which remain anonymised) and the approving Court's judgment in this case illustrates that judges will reach their own conclusions as to whether it is necessary to name individuals, regardless of what is (or is not) written in the documents placed before them.

The second is that prosecutors do not have to refrain from naming individuals in documents they put together recording the details of DPAs. Whether or how individuals are referred to in these documents can be a key negotiation point during discussions between prosecutors and cooperating corporates. The SFO maintained a neutral position in relation to the challenge pursued by Mr Simms-Davies in this case, but pointed out that there was no requirement in statute or the Code of Practice governing DPAs requiring it to give anonymity to individuals. It has done so in the statements of facts concerning the majority of DPAs concluded to date, but not universally. It is for corporates and individuals to demonstrate why anonymity is necessary. The High Court's decision may lead prosecutors to take a harder line on these points during DPA negotiations.