On 17 May 2012, the Ministry of Justice (MoJ) published a consultation paper on the implementation of deferred prosecution agreements (DPAs) in the UK. In its proposed form, a DPA will be entered into, at the court’s discretion, between a prosecuting authority, such as the Serious Fraud Office (SFO), and the commercial organisation which has committed an economic crime. The threat of full prosecution remains if the commercial organisation fails to comply with the DPA.
Back to top
Purpose of the consultation
It is anticipated that DPAs will encourage companies to engage more with the UK prosecuting authorities during criminal investigations, while offering certainty or an early closure to criminal matters and better outcomes to victims, whilst limiting any collateral damage (e.g. negative press exposure, or employee redundancies).
DPAs, a common enforcement tool in the US, are designed to assist the effective management and prosecution of economic crimes, such as commercial fraud and offences under the Bribery Act 2010, avoiding costly and uncertain criminal investigations. Where an offence is sufficiently serious or the public interest would require a criminal prosecution, the judiciary will have the authority to control the application and use of DPAs.
The consultation paper states that only companies will be able to benefit from DPAs, not individuals.
Back to top
The consultation puts forward the following proposals for consideration:
- As with the US system, it is intended that DPAs will be publicly available on the MoJ website subject to any parallel ongoing proceedings.
- The terms and conditions of a DPA are to be agreed by the prosecuting authorities and commercial entity and as such may differ according to the circumstances of each case. However it is expected that a DPA will contain a statement of agreed facts, provide deadlines for the completion of certain conditions and outline any specific penalties for failure to comply with its terms.
- DPAs will ensure that the judiciary takes on a more proactive role in guiding commercial organisations through criminal investigations. The court's input will be apparent throughout the process, for example:
- The Court will investigate whether it is appropriate for prosecuting authorities to offer and enter into a DPA with a particular organisation;
- A preliminary hearing will be held to consider and confirm the contents of a DPA and agree on proceedings going forward;
- Once the contents of a DPA have been approved, the judiciary will continue to monitor compliance with the DPA and will take the necessary actions required in the event of a breach;
- The Judiciary will confirm an organisation's compliance with a DPA and may call an end to the agreement.
The deadline for submitting responses to the paper is 09 August 2012. We expect that the MoJ will take some time to digest these and refine draft legislation which we understand may receive Royal Assent in March-April 2013.
Back to top