A Parliamentary Bill which, amongst other things, makes provision to introduce Deferred Prosecution Agreements into the UK received the Royal Assent last week.
The subject of Deferred Prosecution Agreements (“DPAs”) is covered in section 45 and Schedule 17 of the Crime and Courts Act 2013.
No date has been set for the coming into force of these provisions but they will have retrospective effect with regard to conduct occurring before the commencement of Schedule 17.
The salient provisions contained in the Schedule are as follows:
Characteristics of a DPA
A DPA is defined as ‘an agreement between a designated prosecutor and a person (“P”) whom the prosecutor is considering prosecuting for an offence…..’ whereby ‘P agrees to comply with the requirements imposed on P by the agreement…..’
Effect of DPA on instituted court proceedings
As soon as proceedings for an alleged offence are instituted by a prosecutor, they are automatically suspended on application to the Crown Court by the prosecutor and following approval of the DPA by the court.
‘Instituted proceedings’ are those which have been instituted by the prosecutor in the Crown Court by preferring a bill of indictment charging P with the alleged offence.
Offences to which this applies are specified in Part 2 of Schedule 17.
Persons who may enter into a DPA
P may be a body corporate, a partnership or an unincorporated association but may not be an individual.
Content of a DPA
A DPA must contain a statement of facts relating to the alleged offence and must specify a date upon which it ceases to have effect.
The requirements that a DPA may impose on P include, but are not limited to, requirements to pay a financial penalty to the prosecutor, to compensate victims, to donate money to a charity, to disgorge any profits made, to implement or make changes to a compliance programme, to co-operate in any investigation and to pay costs to the prosecutor.
Any money received by the prosecutor in relation to a financial penalty or disgorgement of profits is to be paid into the Consolidated Fund.
Code on DPAs
The Act imposes upon the DPP and the Director of the SFO a requirement to issue a Code for prosecutors giving guidance on the principles to be applied in determining whether a DPA is likely to be appropriate in a given case.
Following negotiations between a prosecutor and P, but before the terms are agreed, the prosecutor must apply to the Crown Court at a hearing held in private for a declaration that entering into a DPA with P is likely to be in the interests of justice and that the proposed terms are fair, reasonable and proportionate.
When a prosecutor and P have agreed terms, a prosecutor must apply to the Crown Court for a declaration that the DPA is in the interests of justice and that its terms are fair, reasonable and proportionate.
Any such declaration and the reasons for approval must be given in open court, at which point the DPA comes into force.
Upon approval, the prosecutor must publish the DPA, the declaration of the court and the court’s reasons for its decision.
Breach of DPA
If while the DPA is in force the prosecutor believes that P has failed to comply with its terms, the prosecutor must bring the matter to the attention of the Crown Court. If the court finds, on a balance of probabilities, that P has failed to comply, it may invite the prosecutor and P to agree proposals to remedy the failure or it may terminate the DPA.
Variation of DPA
The prosecutor and P may agree to vary the terms of the DPA if invited by the court to do so or where it is necessary to avoid a failure to comply by P, in circumstances which had been unforeseen when the DPA was agreed. Any such agreement requires the approval of the Crown Court.
Discontinuance of Proceedings
After the expiry date of the DPA, the proceedings instituted are to be discontinued by the prosecutor. Fresh proceedings may, however, be instituted should it transpire that during the course of negotiations for the DPA, P provided inaccurate, misleading or incomplete information to the prosecutor which he knew or ought to have known was so.
Use of material in criminal proceedings
The statement of facts contained in a DPA is to be treated as an admission by P in any proceedings brought against P for the alleged offence.
These provisions will be of much greater appeal to the SFO as an alternative to criminal prosecution than the current alternative provided by Civil Recovery Orders.
From a corporate perspective, DPAs are likely to provide companies discovering serious fraud or corruption with a greater incentive to make a self-report to the authorities.