SFO and the Director of Public Prosecutions (DPP) are consulting on the Code of Practice required under the Crime and Courts Act that the prosecutors must use when considering deferred prosecution agreements (DPAs). A prosecutor will have regard to existing codes of practice and guidance, including the Code for Crown Prosecutors, the Corporate Prosecution Guidance, the Joint Prosecution Guidance on the Bribery Act and also the DPA Code. The consultation covers:

  • how to apply the two-stage test relating to evidence and public interest in order to establish that a DPA would be appropriate. In relation to the evidential test, the consultation proposes that either the conditions of the "Full Code Test" which prosecutors must apply are already met, or, if not, that there is at least a reasonable suspicion that the commercial organisation has committed the offence, and there are reasonable grounds for believing that a continued investigation would provide further evidence within a reasonable period of time, so that all the evidence together would be capable of establishing a realistic prospect of conviction in accordance with the Full Code Test. To satisfy the public interest test, the prosecutor must prove the public interest would be better served by a DPA than a full prosecution;
  • suggested indicative factors that may determine whether or not a full prosecution is in the public interest. The consultation stresses it will often be better to prosecute, and that no-one has the right to request a DPA over a prosecution. Additional public interest factors in favour of prosecution include a history of similar conduct; evidence the conduct is part of the established business practices of the company; the company having an ineffective corporate compliance programme; previous warnings or worse to the company which it has failed to action; failure to report wrongdoing properly or at all; or severe economic harm to the victims. Additional public interest factors against prosecution include a genuinely proactive approach from management, involving self-reporting and remedial actions, including the compensation of victims; lack of a history of similar conduct; the company having a genuinely proactive and effective corporate compliance programme; the offence being an isolated incident; the company and/or its procedures having changed significantly for the better since the offence; or a conviction being likely to have unduly adverse consequences for the company under the law of another jurisdiction;
  • the process for negotiating a DPA;
  • how the prosecutor can use in a subsequent prosecution information it obtains in the course of DPA negotiations;
  • the treatment of material obtained during DPA negotiations but not used;
  • the statement of facts and terms of the DPA;
  • the court hearings;
  • process on breach or variation of a DPA;
  • discontinuance of a DPA;
  • guidance on whether hearings should be in public or in private; and
  • factors for consideration when publishing DPAs as permitted under the Crime and Courts Act.

Consultation closes on 20 September. (Source: Consultation on Code of Practice for DPAs)