On 27 June 2013, the Serious Fraud Office (SFO) and Director of Public Prosecutions (DPP) published a draft Code of Practice setting out their approach to the use of Deferred Prosecution Agreements (DPAs). A link to the draft Code of Practice can be found here. The Code of Practice, once finalised, will be a key document in understanding the basis on which prosecutors will approach agreeing DPAs. Mirroring the existing test for prosecutors, the draft Code sets out a two stage process for prosecutors in determining whether to conclude a DPA: (1) whether the evidence provides a realistic prospect of conviction, and (2) whether agreeing a DPA would be in the public interest. With regard to public interest considerations, the proposed Code states that prosecutors will consider those public interest factors already set out in the Code for Crown Prosecutors together with additional factors such as whether the conduct is part of the established business practices of the company and whether the offence was committed at a time when the company had an ineffective corporate compliance programme. The draft Code also provides further detail on the procedure to be applied by the SFO and DPP and guidance on the subsequent use of evidence obtained in DPA negotiations. The consultation upon the draft Code requires responses to be submitted by 20 September 2013.
Also on 27 June 2013, the Sentencing Council released a draft Fraud, Bribery and Money Laundering Offences Guideline for consultation. It ranges across fraud in all of its guises, including in the corporate context. It will have relevance in the context of DPAs: “The guideline for offences committed by corporations included within this consultation is not a guideline for DPAs but may be used to inform the level of financial penalty that forms part of a DPA.” The Sentencing Council consultation requires responses to be submitted by 4 October 2013.