On 25 April 2012, the Crime and Court Bill 2012-13 received royal assent. Changes of note include the creation of the National Crime Agency (NCA) and the introduction of Deferred Prosecution Agreements (DPAs) in England and Wales which, it is proposed will be used by prosecutors in economic crime cases.
Part 1 of the Crime and Court Act 2012-13 (the ‘Act’) abolishes the Serious Organised Crime Agency (SOCA) and the National Police Improvement Agency (NPIA) to set up the NCA. This is part of the government’s new organised crime strategy launched in July 2011.
The aims of the NCA are to prevent and detect serious organised crime - a function currently performed by SOCA; the pessimist might say there is not much change there. However, the plan is that the NCA will comprise four operational units: Organised crime, Economic Crime, Border Policing and Child Exploitation and Online Protection (CEOP). Each unit will be led by a senior experienced individual but will work together as an integrated and flexible agency.
The NCA will also house a National Cyber Crime Unit. Interestingly the Act allows the Secretary of State to modify the functions of the NCA by statutory order to include counter-terrorism functions; a function that was not previously afforded to SOCA and a potential significant expansion of the NCA’s powers. Mr Jeremy Outen has recently been recruited as director designate of the Economic Crime Command and as the former head of fraud at KPMG it is hoped his private practice experience will bring a highly visible and national profile to the NCA.
While Section 45 and Schedule 17 of the Act introduce the hotly-awaited DPAs, no date has been set for these provisions to come into force. The Act defines a DPA 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..’ P may be a body corporate, a partnership or an unincorporated association but it may not be an individual.
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. A DPA must contain a statement of facts relating to the alleged offence and it must specify a date upon which it ceases to have effect. It may also specify the requirements to be imposed on P which could include a financial penalty, compensation to victims or a donation of money to a charity.
DPAs were first developed in the US and came into prominence in 2004. However whilst the US model has influenced the UK version, the Act reveals a relatively cautious approach compared to the US with far more judicial involvement. For example, following negotiations between a prosecutor and P (but before the terms of the DPA are agreed) a preliminary hearing will take place at the Crown Court in private. The prosecutor will give notice of its provisional decision to agree to the DPA, this will provide the judge with an outline of the agreed basic facts and wrongdoing, a list of likely charges / draft indictment, contemplated conditions to be attached to the DPA and areas currently the subject of discussion. The judge will then provide a preliminary indication of whether the DPA is ‘in the interests of justice’ and that the proposed terms are fair, reasonable and proportionate. However, it is not clear what happens if P agrees in principle to a DPA with a prosecutor, only for the DPA to be rejected at the preliminary hearing. P will have disclosed potential liability to a judge which the prosecutor may later be duty bound to prosecute.
We can only hope that the Code for prosecutors which is yet to be drafted but required by the Act will provide sufficient guidance for prosecutors on such issues. As super sleuth Hercule Poirot once said ‘we wait with the breath that is baited’.