Deferred prosecution agreements: a new tool for UK prosecutors
On 24 February 2014, the legislation introducing deferred prosecution agreements (DPAs) in the UK came into force, giving prosecutors the power to enter into DPAs with commercial organisations that they suspect of criminal wrongdoing.
Limited, at least initially, to use in the context of bribery, fraud and other economic crime, a DPA is a court-approved arrangement under which the prosecutor agrees to suspend prosecution of a company in return for the company agreeing to fulfil a number of conditions. Those conditions may include paying financial penalties, compensating victims, introducing (or improving) a compliance programme, giving monitors access to the company and providing full cooperation to the prosecutor in any related investigations.
A DPA will also contain a statement of facts, which will provide the context for the agreement and will be treated as a formal admission in any subsequent criminal proceedings. As a result, the statement of facts is likely to be a sensitive and highly negotiated part of each DPA.
Upon the expiry date of the DPA, and provided that the company has not breached the terms of the DPA, the prosecutor will formally discontinue criminal proceedings against the company.
The consequences of subjecting a commercial organisation to a full-scale criminal prosecution and conviction can be, and usually are, devastating. Therefore, a tool that allows prosecutors to address wrongdoing by a company, whilst ensuring that it remains a going concern for the benefit of its innocent stakeholders, is to be welcomed. That said, entering into a DPA will be a decision of huge significance for a board to take as it is likely to fundamentally alter the company and its future operations.
Unlike in the U.S., where DPAs originated, under English law a company will generally not be held criminally liable for an act or omission unless it can be established that its "directing mind and will" knew of and was complicit in the misconduct (the so-called "identity principle"). (One relevant exception is the offence of failing to prevent bribery under s7 of the Bribery Act 2010). Therefore, in contrast to the position in the U.S. where the threat of a likely successful prosecution provides strong encouragement for a company to enter into a DPA, the incentive to do so in the UK may often be somewhat lower.
Finally, for companies that generate significant revenue from publicly funded work, a major concern about entering into a DPA will be that the admissions included in the statement of facts, or the very fact that the company agrees to be charged at the outset (albeit with the prosecution being automatically suspended on the terms of the DPA), may be sufficient to debar the company from tendering for some or all of that public work in the future. However, a successful conviction would of course be even more catastrophic.
Where to look?
Crime and Courts Act 2013, Schedule 17:
Joint Prosecutors' Deferred Prosecution Agreements Code of Practice:
Criminal Procedure Rules – Part 12: Deferred Prosecution Agreements: http://www.legislation.gov.uk/uksi/2013/3183/pdfs/uksi_20133183_en.pdf
Schedule 17 of the Crime and Courts Act 2013.