‘DPAs’ have arrived in England: the proof of the pudding is in the eating

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By Raymond L Sweigart

As noted in our previous alert in September 2013, the UK Crime and Courts Act 2013 has now come into effect this month, making deferred prosecution agreements (DPAs) available to the director of the Serious Fraud Office (SFO) and the director of public prosecutions (DPP) in suitable cases involving bribery, fraud or other economic crime committed by business entities such as companies or partnerships. Individuals are not covered, and the procedure in England will differ somewhat from the DPA process that has been used in the US for many years. Nevertheless, DPAs are generally anticipated as a welcome addition to a system suffering from a history of prosecution delays and backlogs predating the Bribery Act 2010.

Criminal prosecutors in the US federal courts have long enjoyed absolute discretion to decide not to prosecute, as well as near-absolute power under Fed. R. Crim. P. 48(a) to extinguish a commenced case, subject only to an exception where dismissal is ‘clearly contrary to manifest public interest’. In addition to those options, often referred to as a non-prosecution agreement (NPA), a federal government prosecutor may enter into a DPA where a criminal prosecution will remain pending (assuming all goes well) for at least five years, after which the proceeding will be dismissed by the court. US district judge John Gleeson of the Eastern District of New York recently pointed out that a pending criminal proceeding is not ‘window dressing’ nor ‘the court, to borrow a famous phrase, a potted plant’ when considering issues related to DPAs. In sum, by placing a criminal matter on the docket of a federal court subject to the DPA and to ultimate dismissal, rather than the government declining to proceed at all pursuant to an NPA, the parties effectively make the court an ‘instrument of law enforcement’. By so doing, at least according to Judge Gleeson, they subject the DPA to the legitimate exercise of the court’s inherent supervisory power, to ensure the DPA does not ‘so transgress […] the bounds of lawfulness or propriety as to warrant judicial intervention to protect the integrity of the court’. Nevertheless, under US practice, the prosecutors are in control, and the court’s role appears limited to approving the exclusion of delay under the speedy trial provisions of 18 U.S.C. § 3161(c) during the deferral of prosecution. This limited role is not synonymous with approving the deferral of prosecution itself…

Click on the link below to read the rest of the Pillsbury briefing.