In the UK, significant changes are imminent as the much anticipated Deferred Prosecution Agreement (DPA) takes a step closer to implementation with the release of a Draft Code of Practice. DPAs offer a radical departure from the UK’s traditional approach to corporate criminality and, in conjunction with the Bribery Act, represent a significant change in the UK’s regulatory landscape.
DPAs were introduced to UK jurisprudence to bring UK law more in alignment with US law and to assist in multi-jurisdictional cases involving economic crime - money laundering, fraud, bribery. We expect that DPAs will useful tools for prosecutors seeking to enforce the UK Bribery Act. DPAs are likely to take effect from February 2014 and will be available to “designated prosecutors” in the UK – currently the Serious Fraud Office and Director of Public Prosecutions.
DPAs were developed in response to the heavily criticised "civil settlements" in earlier high-profile cases and are structured to receive far more judicial attention prior to approval.
What is a DPA?
A DPA is a court-approved agreement between a prosecutor and a company to suspend criminal proceedings. In exchange the company must agree to conditions including:
Any breach can lead to the resumption of prosecution.
DPAs may be entered into with corporates, partnerships and unincorporated associations, but not individuals.
While DPA negotiations are ongoing and once a DPA is in place, no proceedings may be brought against the company regarding the alleged offence, unless it can be shown that inaccurate, misleading or incomplete information has been provided.
The Director of Public Prosecutions, Director of the Serious Fraud Office or any other prosecutor identified by an order of the Secretary of State may exercise the power to enter into a DPA.
Possible sanctions include the payment of financial penalties, a disgorging of profits, payment of compensation to victims and costs to prosecutors, charitable donations, and implementation of compliance programmes, as well as a requirement to cooperate in any investigation.
What does the Draft Code say?
The Draft Code expands upon the framework provided by statute, offering further detail on some areas listed above as well as issues not dealt with by the legislation. While written to assist prosecutors, the Draft Code offers guidance to all those seeking to understand how DPAs will be implemented.
When should a DPA be used?
No defendant has a right to be invited to enter a DPA; it is a matter for the prosecution's discretion. Accordingly, the Draft Code provides a two-stage test to determine whether a DPA would be appropriate:
1. Is the Full Code Test in the Code for Crown Prosecutors met – that is, is there sufficient evidence to provide a realistic prospect of conviction? or is there reasonable suspicion that the company has broken the law and that continued investigation would provide further evidence within a reasonable time period, so that all the evidence together would be sufficient for conviction in accordance with the Full Code Test?
2. Would be the public interest be properly served if the prosecutor were to enter into a DPA with the company?
The Draft Code lists factors which a prosecutor may take into account when considering whether a DPA is in the public interest. As a general rule, the more serious the breach, the less appropriate the use of a DPA. Particular reference is drawn to the OECD Convention on Combatting Bribery and its requirement for the prosecution of bribery of a foreign official not to be influenced by:
Considerations of national economic interest
The potential effect upon relations with another state or
The identity of the natural or legal persons involved.
Factors supporting prosecution include:
A history of similar conduct
Repeated flagrant breaches, particularly when there have been warnings or sanctions
Conduct which is part of the established business practice of the company
Late or inaccurate reporting
Victims having suffered severe economic harm
Factors weighing against a prosecution include:
Robust compliance programmes
Implementation of effective self-reporting
Proactive measures to remedy problems and compensate victims
Prompt and full reporting
No previous regulatory action
Breach committed due to the actions of a rogue employee
The Draft Code devotes several paragraphs to the issue of self-reporting. The emphasis is on speed and quality. DPAs are a much-needed statutory measure to offer companies faith that "doing the right thing" will be to their benefit and achieve a better outcome than going through a full-blown prosecution.
The Draft Code offers companies some degree of comfort in the face of the extremely high levels of compliance required by the UK Bribery Act. A company that implements strong compliance procedures, even if they have fallen short in a particular instance or difficult jurisdiction, should at least receive the opportunity to benefit from a DPA.
The publication of the Draft Code shines a strong light on the way in which DPAs are likely to operate. However, many questions still remain. While some of these questions will be directly addressed through the ongoing consultation process, others may only be settled by observing how prosecutors, courts and companies approach these revolutionary agreements.