On Thursday 27 June 2013 two related consultations were published, which bring Deferred Prosecution Agreements ("DPAs") one step closer to becoming a reality.
We have previously commented on the proposed powers for prosecutors to negotiate and enter into DPAs with companies, partnerships and unincorporated associations as an alternative to prosecution. For more information please click on the links here and here. The legislative framework for DPAs can now be found in Schedule 17 to the Crime and Courts Act 2013 passed on 25 April 2013. Whilst a date has yet to be set for these provisions to come into force, the Serious Fraud Office expects DPAs to be available from February 2014.
The first of the two consultations is the Sentencing Council's consultation on a proposed Fraud, Bribery and Money Laundering Offences Guideline: http://sentencingcouncil.judiciary.gov.uk/docs/Fraud_Consultation_-_web.pdf
This consultation will be open until 4 October 2013, and invites interested parties to comment on a list of 55 questions set out in Annex A. Of particular relevance for DPAs are the proposed guidelines on corporate offenders in section nine. Although Sentencing Council guidance is not a pre-condition for the provisions on DPAs entering into force, they are clearly crucial to a corporate entity's willingness to enter into DPA negotiations and to the prospects of agreement being reached on the terms of a DPA.
The Sentencing Guideline will be of general applicability - it provides guidance on the sentencing of companies convicted of fraud, bribery or money laundering, not merely companies who enter into a DPA in respect of those offences. It is therefore of significant importance; companies who have not to date engaged in the debate around DPAs may nonetheless wish to comment on this consultation.
The second consultation is the DPP and Director of the SFO's consultation on a draft "Deferred Prosecution Agreement Code of Practice": http://www.sfo.gov.uk/about-us/our-policies-and-publications/deferred-prosecution-agreements--consultation-on-draft-code-of-practice.aspx
This consultation closes slightly earlier, on 20 September 2013. Responses are invited to seven questions indicated on a separate form accompanying the consultation paper. As expected, the draft Code of Practice sets out the factors a prosecutor may take into account when deciding whether to enter into a DPA and the process to be followed when inviting a corporate to enter into DPA negotiations. It provides guidance on how prosecutors may use information obtained during DPA negotiations, taking disclosure obligations into account. It provides further detail on the necessary elements of a DPA – the statement of facts, and its terms (including financial penalties). It sets out the procedures for seeking and obtaining judicial approval of a DPA, and for dealing with breaches, variations and discontinuance. Finally, it stresses the obligation on prosecutors to publish DPA decisions and related court orders.
A third consultation is expected to be announced by the Criminal Procedure Rule Committee, on amendments to accommodate the proposed DPA process. The draft Code of Practice cross-refers to such rules, and therefore needs to be considered together with any proposed amendments to the Criminal Procedure Rules once published.
We will be publishing a more detailed briefing on these developments in due course. We will also be preparing responses to these consultations, and assisting clients in preparing their own responses. If you have any points which you would like us to consider including our consultation response, please let us know.