The Deferred Prosecution Agreement ('DPA') was created by the Crime and Courts Act 2013. They are essentially a tool to allow a prosecutor to deal with alleged criminal conduct that avoids formal prosecution. They are an agreement to a course of a conduct, subject to which prosecution for a criminal charge is deferred. At the end of that deferred period, if the defendant has complied with the obligations within the DPA (such as a financial penalty, amendment of compliance programmes or payment of compensation) then no prosecution is bought. An example of this in practice is the DPA that Tesco recently agreed in principle to, which would involve them paying a penalty of £128,992,500 and the Serious Fraud Offices' costs, subject to Court approval.

What are the key elements of a DPA?

DPAs require judicial agreement before they are binding, and they only apply to corporate bodies. They cannot be entered into by an individual. Aside from that, there are two initial questions to consider before a DPA can be established to be relevant in a prosecution. These considerations are:

  • Can the prosecutor make use of the DPA?
  • Is the offence eligible for a DPA?

The Crime and Courts Act 2013 lists the prosecutors that are able to make use of a DPAs as an alternative to prosecution. Currently, only the Director of Public Prosecutions and the Director of the Serious Fraud Office are designated prosecutors, although the Crime and Courts Act 2013 does allow the Secretary of State to designate further prosecutors who may make use of DPAs.

There are a number of financial offences that can be disposed of by DPA, including (among others):

  • conspiracy to defraud
  • bribery
  • fraud
  • false accounting.

A full list of the applicable offences can be found at schedule 17 to of the Crime and Courts Act 2013.

In addition, any offence that is ancillary to those listed at schedule 17 above is also eligible for disposal by a DPA. Ancillary offences include offences such as aiding and abetting, or encouraging, assisting, attempting or conspiring to commit the offence in question. A full list of ancillary offences can also be found at schedule 17 to of the Crime and Courts Act 2013.

What tests must be satisfied before a DPA can be entered into?

Under the DPA Code of Practice (published by the Serious Fraud Office and the Crown Prosecution Service) there is a two stage test that must be applied before a DPA can be considered:

  • The evidential stage
    • Is there sufficient evidence to provide a realistic prospect of conviction, taking into account what potential defences might be raised and how they may affect the likelihood of conviction; or
  • Is there a reasonable suspicion that the company has committed the offence and are there reasonable grounds for believing that if the investigation continues further evidence will be found within a reasonable period of time, so that a realistic prospect of conviction would be made out after further investigation? The "reasonableness" of the time period for further investigation depends on the context of the matter, including the size and complexity of the alleged offence.
  • The public interest test
    • It must be established by the prosecutor that it would be in the public interest to not prosecute the company that is alleged to have committed the offence, but instead to enter into a DPA.

The above means that DPAs are unlikely to be considered early on in an investigation, unless there is strong evidence to show that further investigation will provide a realistic prospect of conviction.

How are DPAs used in practice?

It appears to be the case that prosecutors are more willing to extend the option of a DPA where the defendant co-operates with its investigation. Co-operation involves proactive self-reporting and the DPA Code of Practice provides examples of co-operation, including the identification of witnesses and relevant parties, disclosing the accounts of witnesses and any documents shown to them, making witnesses available when requested and providing reports in respect to any internal investigations. Case law states that co-operation also includes providing timely and complete responses to requests for information.

However, the decision to enter into a DPA is up to the prosecutor, and should there be factors that do not support the use of a DPA, such as a history of similar misconduct or obstinacy in the face of investigation, then this option may not be made available to a defendant.

How is a DPA approved?

The prosecution must apply to the Crown Court for a declaration that the DPA is in the interests of justice and that the terms are fair and reasonable. If the Court decides to approve the DPA, then this approval is given in open court. This process gives the Court the ability to determine whether a DPA is in the public interest, and also to consider the terms included in the DPA. Therefore, there is only so much certainty for a company that has agreed a DPA with a prosecutor, as the terms within it may be varied or rejected by the Court on review.

Conclusion

This area of criminal law is a relatively recent development in the UK, and the recent publication of the DPA agreed in principle between Tesco and the Serious Fraud Office on the 28 March 2017 demonstrates that prosecutors are actively considering DPAs as a valid alternative to prosecution, as demonstrated by the Serious Fraud Office agreeing to a DPA with Rolls Royce earlier on this year.

It is highly likely that the practice regarding the use of DPAs in prosecutions will continue to develop. The area is relatively complex, and whilst there are points that have not been discussed in full above, it is hoped that this article gives some clarity as to the basics of what a DPA is, and its role in criminal prosecutions.