On February 14, 2014, the Director of the Serious Fraud Office and the Director of Public Prosecutions published a joint code of practice (DPA Code) on the use of Deferred Prosecution Agreements (DPAs), together with a response to their June 2013 public consultation. A DPA is an agreement between an organisation and a prosecutor which, if approved by a court, allows a prosecution to be suspended for a defined period, provided the organisation in question meets certain specified conditions. The offences for which DPAs may be used broadly relate to fraud, bribery and other economic crimes. The DPA Code is issued pursuant to paragraph 6(1) of Schedule 17 to the Crime and Courts Act 2013, which received Royal Assent in April 2013. This states that the Director of the Serious Fraud Office and the Director of Public Prosecutions must jointly 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 and the disclosure of information by a prosecutor to the organisation during the DPA process. The Crime and Courts Act 2013 (Commencement No.8) Order 2014, which was published on February 11, 2014, provides for the coming into force of DPAs on February, 24, 2014.
Prosecutors are required to have regard to the DPA Code when: (i) negotiating DPAs with an organisation whom the prosecutor is considering prosecuting for an offence specified in the Crime and Courts Act 2013; (ii) applying to the court for the approval of a DPA; and (iii) overseeing DPAs after their approval by the court, in particular in relation to variation, breach, termination and completion. The DPA Code includes information on:
- Whether a DPA is a possible disposal of alleged criminal conduct: The DPA Code states that the DPA is a discretionary tool used to respond to alleged criminal conduct and sets out the two stage process that a prosecutor must follow, namely the evidential stage and the public interest stage. If a DPA is considered appropriate by the relevant Director, having determined that either limb of the evidential stage is met, and that the public interest is best served by entering into a DPA, the prosecutor will (where the court approves the DPA) prefer an indictment. The indictment will, however, then immediately be suspended pending the satisfactory performance, or otherwise, of the DPA.
- Factors that the prosecutor may take into account when deciding whether to enter into a DPA:Stressing the discretionary nature of DPAs, the DPA Code states that when considering whether a DPA may be appropriate, the prosecutor will have regard to existing codes of practice and guidance, in particular: (i) the Code for Crown Prosecutors; (ii) the Joint Prosecution Guidance on Corporate Prosecutions; (iii) Joint Prosecution Guidance of the Director of the Serious Fraud Office and the Director of Public Prosecutions in relation to the Bribery Act 2010, which was published in March 2011; and (iv) the DPA Code.
- Process for invitation to enter into negotiations: The DPA Code states that if the prosecutor decides to offer the organisation in question the opportunity to enter into DPA negotiations, it will do so by way of a formal letter of invitation outlining the basis on which any negotiations will proceed. The letter will constitute the beginning of the DPA negotiation period, which will end with either the withdrawal of one or both parties from the process, or the approval/ refusal by the court of a DPA at a final hearing.
- Subsequent use of information obtained by a prosecutor during the DPA negotiation process:This sets out the contexts within which information obtained by the prosecutor during the DPA negotiation period may subsequently be used.
- Unused material and disclosure: The DPA Code provides that a statement of the prosecutor’s duty of disclosure will be included in the terms and conditions letter provided to the organisation at the outset of the negotiations.
- Statement of facts: A DPA must include a statement of facts relating to the alleged offence, which may include admissions made by the organisation in question. The DPA Code sets out the content of the statement of facts which must: (i) give particulars relating to each alleged offence; and (ii) include details, where possible, of any financial gain or loss, with reference to key documents that must be attached.
- Terms of the DPA: The DPA Code provides guidance on the basis and terms of a DPA and specifies its normal requirements. It states that the following will normally be terms of a DPA: (i) a financial order; (ii) the payment of the reasonable costs of the prosecutor; and (iii) co-operation with an investigation related to the alleged offence(s).