Deferred prosecution agreements — definitive guidelines and code of conduct

Deferred prosecution agreements (DPAs), the government’s newest weapon in the fight against corporate crime, become available to prosecutors from 24 February 2014. They will widen the scope for enforcement against companies and corporate entities involved in fraud, money laundering, bribery and corruption. On 14 February 2014, the director of the Serious Fraud Office and the director of public prosecutions published a joint code of practice on their use of DPAs, which supplements the recently published Sentencing Council’s Definitive Guideline on fraud, bribery and money laundering for corporate offenders. The government announced plans to introduce DPAs in October 2012 and they were given their statutory footing in the Crime and Courts Act 2013, which received royal assent in April 2013. In the summer of 2013, there followed an extensive consultation exercise that has resulted in the publication of the code.

A DPA is a public, voluntary and transparent agreement between a prosecutor and an organisation whereby prosecution for alleged economic crimes can be deferred if certain conditions are met. If an organisation admits wrongdoing, a DPA would still mean criminal charges being laid but the proceedings would be automatically suspended pending compliance with stringent conditions, which will be agreed between the parties and subject to approval by the judiciary. Conditions may include disgorgement of profits, payment of fines, compensation for victims, co-operation in any prosecution of individuals and implementation of a compliance programme, if necessary with a monitor appointed. Unequivocal co-operation by the corporate is essential. If the conditions are not met, the prosecution will be resumed. Neither the code nor the guidelines seek to dissuade prosecutors prosecuting where the public interest would not be served by entering into a DPA. However, it is hoped that their use in appropriate circumstances can help to mitigate some of the collateral damage caused to shareholders and employees when a company is convicted of a criminal offence by the courts — for example if the business is wound up…

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