This article was co-authored by Thomas Widdowson, Trainee Solicitor, London.
On 31 May 2023, Entain plc (Entain), the leading global sports betting, gaming and interactive entertainment group, announced that it had entered into Deferred Prosecution Agreement (DPA) negotiations with the Crown Prosecution Service (CPS) regarding a number of offences, which include, but are not limited, to that under s.7 of the Bribery Act 2010.
Although the disclosure appears to have surprised many, given the confidential nature of DPA negotiations, this article discusses the disclosure and addresses the elephant in the room, namely the direct involvement of the CPS.
In November 2019, Entain had disclosed that a subsidiary received a production order from HM Revenue & Customs (HMRC) requiring it to provide information relating to the business’ Turkish-facing online betting and gaming business. Although the business understood that HMRC’s investigation was focussed on the processing of payments for online betting and gaming in Turkey, HMRC subsequently widened the scope of its investigation and began to examine potential corporate offending by entities within the business.
Although the prosecution of Entain remains a possibility, the business announced that it was cooperating fully with HMRC and the CPS with a view to entering into a DPA. Entain went so far as to note that it had entered into negotiations with the CPS about entering into a DPA. The CPS is yet to comment.
The furore around the announcement
Entain’s announcement appears to have surprised many, with questions being raised about the “unusual” approach it has taken given the undertakings contained in the Serious Fraud Office and CPS joint DPA Code of Practice; particularly that a prosecutor will seek assurances by way of an undertaking regarding “the confidentiality of the fact that DPA negotiations are taking place” (Paragraph 3.6 DPA Code of Practice).
Although the news appears to have raised an eyebrow or two, the disclosure is merely a ripple and does not break new ground. One only needs to look back a few years when Tesco plc made a similar announcement in March 2017 when it disclosed to the London Stock Exchange that Tesco Stores Limited had, in principle, reached a DPA with the SFO. A DPA was subsequently agreed regarding Tesco Stores Limited’s accounting irregularities at that existed in 2014.
So why does this news not break new ground? It is generally accepted that there are strict requirements when an entity is invited into DPA negotiations, including the provision of an undertaking about the confidentiality of information provided by a prosecutor and a negotiating entity in the course of DPA negotiations. However, there is a slight quirk when a listed company enters into these negotiations, particularly when the interests of market integrity is concerned. As a general rule, the principle is that investors should be given all inside information about listed companies as soon as possible so that they do not deal in shares or bonds on a false premise.
Entain is a company with a premium listing on the London Stock Exchange, and thus is required to abide by the Financial Conduct Authority Handbook’s Disclosure Guidance and Transparency Rules (DTR). There is a requirement in DTR 2.2.1 and DTR 2.2.1A for a listed company to disclose inside information, incorporating article 17(1) of the EU Market Abuse Regulation (596/2014) (MAR), which requires the company (known as an issuer) to inform the public as soon as possible of inside information that directly concerns that issuer.
The DTR borrows the definition of ‘inside information’ from article 7(4) of the MAR as its first limb, namely:
The second limb contained in DTR 2.2.4(2) clarifies that in determining what would have a “significant effect” on the price of financial instruments, there is no specific figure and this will vary from issuer to issuer. This information should be disclosed without hesitation, as any delay is only appropriate if faced with an “unexpected and significant event”. Even then, a holding announcement must be used where there is a concern that information may leak before the facts and impact can be confirmed.
Entain must therefore have considered whether knowledge of ongoing talks surrounding a DPA with the CPS constituted ‘inside information’ for the purposes of the DTR, and factored this in to their decision to publicise these negotiations at this early stage.
Once the reasons behind the announcement are carefully dissected, the truly unusual news to come out of this announcement is not that Entain made this announcement, but that this (assuming negotiations are successful and the DPA is agreed by a court) will be the first time that the CPS will have entered into the DPA-space; all previous DPAs have been negotiated and agreed with the SFO. While the CPS has seemingly been shy to dip its toe into this arena (see R v Skansen Interiors Limited ), this will break new ground for the organisation, which, some have commented, is not adept at moving away from the black-letter approach to pursuing corporate criminal liability.