Use of DPAs became available to designated prosecutors in the
UK for various corporate offences including fraud
Following a consultation process conducted by the UK's
Director of the Serious Fraud Office and the Director of Public
Prosecutions, use of Deferred Prosecution Agreements
("DPAs") became available to designated prosecutors in
the UK for various corporate offences including fraud, on February
24, 2014. The use of DPAs will confer greater powers on prosecutors
to combat white collar criminal activity in the UK and is expected
to address backlogs in the prosecution of offences under various
legislative regimes, including the Bribery Act, 2010.
Schedule 17 of the Crime and Courts Act,2013,
deals exclusively with UK DPAs, the highlights of which include the
following: DPAs in the UK now allow for an automatic suspension of
criminal proceedings following a charge against a body corporate, a
partnership or an unincorporated association, subject to compliance
by the alleged offender with any number of requirements imposed by
the prosecutor. The requirements may include, amongst other items
imposed at the prosecutor's discretion, the payment of fines,
compensation, donations or costs, disgorgement of profits and/or
cooperation with an investigation.
DPAs are Only Available for Companies, Not Individuals.
Finally, before a DPA can come into force, it must be approved
by the Court, which must be satisfied that the DPA is both in the
interests of justice and is fair, reasonable and proportionate.
After the DPA is approved, it must be published such that it is
publicly available, along with the decision and reasons of the
Court for the approval. The DPA remains in force until it ceases on
its terms or is terminated by the Court. If a party breaches the
terms and conditions of the DPA the Court may consider any proposed
remedy by the prosecutor for such a breach, including termination
of the DPA.
The use of DPAs in the UK marks a shift towards a more American
style of white collar crime investigation and enforcement. We have
very recently seen a similarly-themed but somewhat more attenuated
shift in Ontario with the Ontario Securities Commission's
release of Staff Notice 15-702 on March 14, 2014. This Bulletin
introduced the limited permissibility of Non Prosecution Agreements
("NPAs") or "no enforcement action agreements"
in Ontario: see the recent BLG White Collar Crime and Regulatory
Bulletin located at . Aside from the limited availability of no enforcement action
agreements in Ontario conferred by Staff Notice 15-702 however,
NPAs remain generally unavailable within Canadian securities
enforcement proceedings. DPAs are not yet available under any
In R v Villaroman, the Supreme Court of Canada recently dealt with the issue of circumstantial evidence and the inferences that can be reasonably drawn from that evidence in order to find an accused guilty beyond a reasonable doubt.
Canadian engineering and construction giant SNC-Lavalin has been charged by the RCMP with paying bribes of nearly $48 million to Libyan government officials and defrauding Libya of nearly $130 million.
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