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Introduction of Deferred Prosecution Agreements in the UK in 2014
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Introduction of Deferred Prosecution Agreements in the UK in 2014

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Introduction of deferred prosecution agreements in the United Kingdom in 2014 ; regulatory background and timeline; features of the DPAs ; differences with US DPAs.

Introduction of deferred prosecution agreements in the United Kingdom in 2014 ; regulatory background and timeline; features of the DPAs ; differences with US DPAs.

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    Introduction of Deferred Prosecution Agreements in the UK in 2014 Introduction of Deferred Prosecution Agreements in the UK in 2014 Presentation Transcript

    • Deferred Prosecution Agreements now introduced in the United Kingdom By Iohann Le Frapper, Chief Legal Officer for Gulf Bridge International Vice-Chair, and Vice-Chair of the ICC Commission on Corporate Responsibility and Anti-corruption On April 2, 2014
    • Timeline of key milestones:  Bribery Act 2010  Crime and Courts Act 2013 (Section 45) introduced the concept of DPAs ;  14 February 2014 :DPAs Code of Practice issued by the Crown Prosecutions Services (“CPS”) and the SFO ;  24 February 2014: DPAs came into force as a tool available for public prosecutors and the Serious Fraud Office (“SFO”) and an option for companies to consider. Prosecution will remain the main route  1 October 2014 : Definitive Guidelines issued by the Sentencing Council will be applicable to all organisations sentenced on OR after that date, on the ground of fraud, bribery and money-laundering (regardless of the date of the offence). - 10 steps to be followed - Offence category to be determined by culpability and harm
    • What is a DPA ?  Voluntary agreement among the prosecutor and a corporate person  Criminal charges are brought but are suspended subject to satisfying several compliance conditions (e.g. penalties, cooperation, remedial action, monitor)  SFO Director emphasized 2 most important features of DPA : i. Judicial oversight (to answer with court disapproval of cross- jurisdictional settlement agreements) , and ii. Unequivocal cooperation (i.e. timely self-reporting, proactive compliance program, disclosure of full and frank internal investigation findings, disciplinary actions will be expected)
    • Two stage-test for entering into DPA: i. evidential stage : – DPA may be offered if evidential test is met (reasonable suspicion of committed corporate offence ; realistic prospect of conviction). – If not, civil recovery action is a potential route for prosecutor (to recover the proceeds of “unlawful conduct”) ii. public interest stage: – Early involvement of a judge in a private hearing to rule whether the proposed DPA : is “in the interests of justice”, and the proposed terms and statement of facts are “fair, reasonable and proportionate”.  Issue : will courts approve DPAs without admission of guilt by companies ?
    • Key differences with US DPAs:  Allowed for corporate offenders, so commercial organizations only ( not individuals) # US: both individuals and organizations  Settlement of specific offences only(that is fraud, bribery, money-laundering) # US: broad range of criminal activities  Authority to enter into DPAs reserved to heads of CPS and SFO # US  Transparency of process: final court hearing as a public event # US  Key review, approval and oversight role of the judiciary (approval, breach or variation) # discretion of US DoJ
    • Thank you