Annual Bar Conference 2016: Deferred prosecution agreements

A practical guide by defence and prosecution

Deferred prosecution agreements (DPAs), a relatively recent addition to the UK criminal justice toolkit, allow a company which has committed a criminal offence to avoid prosecution if it complies with a range of conditions, including a hefty financial penalty.

The specialist panel, moderated by Stuart Alford QC, offered a crash course in practical language that even tired brains could understand.

Sir Edward Garnier QC MP described DPAs as an idea born from austerity. Prosecuting complex crime is expensive and time-consuming, so he looked to the US’s experience in dealing with corporate wrongdoing. The provisions in the Crime and Courts Act 2013 resemble the US model, but there is one principal difference: the UK model involves active judicial supervision of the agreement. This element was essential for the legislation to obtain political, judicial and public support.

Ben Morgan gave an insight into what the Serious Fraud Office (SFO) is looking for when considering a DPA. In short, a company should approach the SFO early, investigate wrongdoing fully and openly and be as forthcoming as possible about the facts. Winning does not mean defeating your opponent; it means securing court approval for a DPA. Ultimately, the court can only approve a DPA if it is in the interests of justice and the terms are fair, reasonable and proportionate. This balance can be very difficult to achieve. On the one hand, there must be a punishment for wrongdoing. On the other hand, it is in the interest of employees, pensioners and suppliers for the company to remain a going concern, and there must be some incentive for the company to self-report.

Alison Levitt QC argued that the need for early self-reporting poses a challenge for companies. Once a company has self-reported, there is no going back. In practice, companies are likely to begin with their own investigation, followed by a risk assessment of whether the wrongdoing will ever be discovered. They will also be mindful of the risk of prosecution in other countries; although the SFO can work with its counterparts in other countries to avoid duplicate proceedings, there are no binding treaties so there remains a risk of international prosecution. Her advice was to investigate potential wrongdoing early and comprehensively, using external lawyers. As soon as there is a reasonable suspicion of criminal acts, the company cannot procrastinate. If a DPA is sought, companies must prepare to negotiate a sufficient discount on the financial penalty to make the risk worth taking.

The session left me with a good basic knowledge of DPAs and an idea of where to look if I need to know more. What more could I ask in an hour?

Contributor Aoife Drudy

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Aoife Drudy

Government Legal Service and a member of the Counsel editorial board