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
1. 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
2. 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
3. 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)
4. 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 ?
5. 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