Deferred Prosecution Agreements ("DPAs") are now available to prosecutors in the UK. This follows the final version of the joint code of practice on DPAs being published by the Director of Public Prosecutions and the Director of the Serious Fraud Office on 14 February 2014.
As we reported in our July 2013 newsletter, DPAs are agreements entered into between a prosecutor and a company where the prosecutor has agreed to bring but not immediately proceed with a criminal charge against the company, subject to successful compliance by the company with agreed terms and conditions as set out in the DPA. DPAs are therefore an alternative to criminal prosecution or civil enforcement (such as civil recovery orders under the Proceeds of Crime Act 2002).
The code of practice has (among other things) given guidance on some of the potential terms and conditions that may form part of a DPA. One of those terms could be the appointment of a monitor to assess and monitor an organisation's internal controls, advise on necessary improvements to its compliance programme and report any specified misconduct to the prosecutor. For these purposes, the monitor will have complete access to all relevant aspects of the organisation's business. However, the appointment of a monitor will depend on the factual circumstances of each case and must be fair, reasonable and proportionate.
DPAs have been available to prosecutors from 24 February 2014. However, there remains some uncertainty as to the practical implementation and future use of DPAs, not least given the required amount of judicial involvement in the approval of DPAs under the relevant legislation. It remains to be seen to what extent organisations and prosecutors will be prepared to agree the terms of a DPA, and whether the courts will then approve those terms.
The code of practice is available at:
http://www.sfo.gov.uk/media/264623/deferred%20prosecution%20agreements%20cop.pdf
The SFO's press release is available at:
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
