Deferred prosecution agreements
At Libra Solicitors we provide expert advice and representation to businesses and individuals in respect of regulatory and criminal prosecutions. Where a business is facing corporate criminal liability we can, in the appropriate circumstances, ask the prosecution to use its discretion to allow the organisation to enter into a deferred prosecution agreement. For a confidential discussion about how our expertise could help you, call us today on 01223 632420 and arrange an appointment.
Deferred prosecution agreements (DPAs) have been available to prosecutors since 2014, and they are used as an alternative to prosecution when an organisation is charged with a relevant offence.
In that instance the prosecutor could, provided the court agrees, exercise the discretionary power of inviting the organisation to enter into negotiations to suspend prosecution proceedings under the supervision of the court. This can only happen if the prosecutor finds that the public interest is best served by entering into the DPA, and where the prosecutor is satisfied that the organisation is giving complete cooperation. It should however, be noted that a DPA can only be entered into with a body corporate, a partnership or an unincorporated association, and are not available to individuals.
When a DPA is entered into, the prosecution is deferred for a set period while the organisation meets certain conditions that are set by the prosecuting body. If the organisation fails to meet these conditions, the prosecution will resume as before.
These conditions may include compensating any victims of the organisation’s conduct, paying any financial penalties imposed, taking measures to ensure future compliance, and cooperating with the prosecution of individuals responsible for the criminal behaviour.
All aspects of a DPA require the approval of the court which must be convinced that the DPA is “in the interests of justice.” The conditions of the DPA must also be “fair, reasonable and proportionate.” Once the DPA is finalised it will be made public.
Benefits of entering into a DPA
There could be considerable benefit to an organisation facing prosecution in entering a DPA and the benefits could include:
- Avoiding the negative consequences of an investigation and prosecution such as the adverse publicity that may well be involved.
- Avoiding the long-term consequences of the organisation being found guilty of a criminal offence.
- Limiting reputational harm, as the transparent nature of DPAs allows the public to see how the corporate body is making full reparations for any wrongdoing it is responsible for.
- As long as all the conditions are met, a DPA can allow an organisation greater certainty for the future than if it was facing the potential consequences of a criminal prosecution.
The benefits of entering into a Deferred prosecution agreement may be attractive to any business facing prosecution for one of the specified criminal offences that DPAs are available for. However, it must be stressed that the decision by the prosecutor to invite an organisation to take part in a DPA remains discretionary, dependent on the circumstances surrounding the unlawful conduct and is subject to the approval of the court.
Organisations may regard entering into a DPA as a course of action that limits the fallout of an already difficult situation. However, given the importance attached to the behaviour of an organisation, both before and after the unlawful conduct has taken place, we believe that it is essential for companies to implement an effective corporate compliance programme so that the opportunity for criminal actions to occur is minimised.
For a confidential discussion about Deferred Prosecutions Agreements, and how our expertise could help your business in respect of any regulatory or criminal prosecution, call us now on 01223 632420 and arrange an appointment.
Suitable for a DPA?
DPAs are only available for certain offences. And in appropriate cases, prosecutors may be more likely to invite an organisation to enter into a DPA in circumstances where:
- An organisation makes a genuine effort to co-operate, including early self-reporting of offending, particularly in circumstances where the prosecutor is unaware that an offence has been committed.
- An organisation’s management takes a proactive approach towards the situation and co-operates with the prosecutor by making available any witnesses, documents and the results of any internal investigation.
- The criminal activity represents isolated actions by individuals, such as when a rogue director abuses his or her position in order to commit an offence.
- An organisation has an effective corporate compliance programme at the time of the offence that was not effective in that particular instance.
- An organisation is already taking remedial action to help deal with the situation, including compensating any victims of its unlawful conduct.
However, it remains for the prosecutor to decide whether or not it is appropriate to enter into a DPA and that decision remains subject to the approval of the court.
When a DPA may be unsuitable
Organisations facing a criminal prosecution do not have a right to enter into a DPA, as they are a discretionary tool for the prosecutor to use in the appropriate circumstances and under the supervision of the court. Factors which may cause the prosecutor to view a DPA as unsuitable in the circumstances may include:
- Where an organisation has a past history of criminal behaviour and/or regulatory breaches.
- The unlawful conduct alleged is part of the established business practices of the organisation.
- An organisation had no effective corporate compliance programme at the time of the offence and no improvements have been made since the incident.
- An organisation has previously been warned or sanctioned in respect of failing to meet its regulatory obligations, and has not taken adequate measures to prevent subsequent breaches, or has continued to engage in the same unlawful conduct.
- There has been a failure to notify the relevant authority within a reasonable time of any wrongdoing that has taken place, or where the report to the authority was inaccurate, misleading or incomplete.