Deferred Prosecution Agreements (DPAs) are to be introduced in 2014. DPAs are a new enforcement tool available to the Crown Prosecution Service (CPS) and Serious Fraud Office (SFO). They will enable corporate bodies to deal with allegations of criminal activity without trial.

This new power will be available to prosecutors in corporate manslaughter investigations. In the future, DPAs may be extended to other regulators such as the Health and Safety Executive, Environment Agency and local authorities

What?

DPAs are agreements between prosecutors and corporate bodies. They will enable allegations of criminal activity to be resolved without the need for court proceedings. At first, only the CPS and the SFO will be able to enter into DPAs, although there is provision for other prosecutors to be authorised in the future.

Multinational corporations may be familiar with the concept of DPAs from other jurisdictions, particularly in the USA. Companies should however be aware of important differences, in particular the increased role for the judiciary in overseeing DPAs in the UK.

When?

DPAs will be introduced by the Crime and Courts Act 2013 (the Act) and governed by Schedule 17 of it. The Act is expected to come into force in 2014. The CPS and SFO are required to release guidance on their implementation of DPAs which is expected before Schedule 17 comes into force.

How?

Where a corporate body is suspected of committing a criminal offence, it may enter into discussions with the prosecutor about whether a DPA is an appropriate resolution. If no agreement is reached, the prosecution may proceed as usual.

Where the parties reach agreement, a judge will be asked to approve the use of a DPA in principle. This approval will be given in private. Subject to this initial judicial approval, the parties will engage in further discussions to agree the exact terms of the DPA.

The terms of the DPA are likely to include the size of any fine payable and whether compensation is to be paid to any victim of the crime. It is also likely to include details of improvements to be implemented to any compliance programme and the prosecutor's fees to be paid.

Once the DPA is agreed between the parties, the court will be asked to provide final approval. If this approval is given, there will be a court hearing in public at which charges will be laid. The hearing will then be immediately adjourned. The details of the DPA will subsequently be published by the prosecutor.

Assuming the terms of the DPA are complied with within the given timescale, the prosecutor will return to court and charges will be dropped. No further prosecution can then be brought for that alleged offence unless it is found that the corporate body knowingly gave false, inaccurate or incomplete information to the prosecutor.

If the terms of the DPA are not complied with, the prosecutor has the option of seeking a variation to the DPA to enable compliance (e.g. where unforeseen events mean compliance with the original DPA has become unreasonable or impossible) or to prosecute.

Consequences

Once the new regime commences, corporate bodies should consider very carefully whether a DPA is a suitable alternative to a potential prosecution.

If a DPA is a possibility, the company should consider whether a DPA is the correct course of action in its particular circumstances. For example, what is the strength of evidence against the company? What is the size of likely fine if guilt is admitted or proved? Are any individual directors likely to be prosecuted on the basis of the same facts?

As ever, the potential costs consequences of entering into a DPA will need to be considered carefully.

Points to note

DPAs:

  • Are expected to be introduced in 2014;
  • At present may only be entered into by the CPS or SFO;
  • Are only available where the suspected offender is a corporate body, so do not apply to individuals;
  • Are subject to judicial oversight;
  • May impose a range of requirements, including but not limited to fines, charitable donations, compensation to victims and payment of the prosecutor's costs; and
  • May have an effect on any subsequent prosecution of an individual for a related offence.