Government gives green light to Deferred Prosecution Agreements

In our earlier briefing we reported on the Government's consultation to introduce Deferred Prosecution Agreements ("DPAs") – a new mechanism for addressing criminal conduct by commercial organisations. On 23 October, the Ministry of Justice published its Response to that Consultation and confirmed that it intends to introduce DPAs by way of an amendment to the Crime and Courts Bill currently before the House of Lords. In this briefing we consider the key aspects of the Government's consultation response (the "Response") and the current DPA proposals.

Background

The consultation paper in relation to DPAs was issued in May 2012, and accompanied by a series of stakeholder discussion meetings. The premise driving the proposal to introduce DPAs is that detecting and prosecuting corporate offences is fraught with difficulties, and that by incentivising companies to self-report and to cooperate with prosecutors, more organisations might be held to account in a just – but more efficient and less costly – manner. The Response leaves the Government's original DPA proposals largely unaltered. A DPA will permit a prosecutor to lay charges against an organisation but agree to defer proceeding with those charges for an agreed period of time, in return for the organisation's agreement to comply with an agreed set of conditions, including the payment of financial penalties and admission of an agreed statement of facts. The proposed model largely replicates the DPAs developed and widely used in the US, with some adjustments to reflect the UK's constitutional and legal systems – notably a greater degree of early judicial involvement. Key aspects are:

• The decision to enter into DPA negotiations is to be governed by a DPA Code of Practice for Prosecutors. The Code will set out the evidential threshold that must be met in order for a DPA to be offered; this is not articulated in the Response. It is expected that the Code will be further consulted upon, and engagement in this consultation will be important.
• The decision to offer a DPA would require the personal approval of the Director of Public Prosecutions or the Director of the Serious Fraud Office.
• The decision to offer a DPA will also be subject to the approval of a Crown Court judge at a preliminary hearing, held in private. The judge needs to be satisfied that a DPA would be in the interests of justice, and that the proposed terms are fair, reasonable and proportionate. The reasons for his decision would become publicly available on the approval of the DPA.
• The agreed DPA will then require judicial approval, in open court. The prosecutor will publish the final DPA (including the agreed statement of facts), along with details of any judicial rulings made at previous hearings.
• At the expiry of the agreed period, the prosecutor will publish details of how the terms and conditions of the DPA have been complied with.
• The Response differs slightly from the Consultation in its approach to the key issue of the admissibility, in other proceedings, of the DPA and of evidence disclosed to the prosecution. The position will depend on whether a DPA is or is not concluded, and is described in further detail below. Companies are likely to consider that the position remains unsatisfactory.
• Minor breaches of a DPA, capable of being objectively determined, will be dealt with by the prosecutor, in accordance with the DPA Code of Practice for Prosecutors and the provisions of the DPA. The prosecutor will have to publicise that a breach has taken place, as well as the details of the action taken.
• Contested or more significant breaches will be referred to a judge, who will apply the civil standard of proof in determining whether there has been a breach. The options available to a judge on a finding of a breach will be provided for in the legislation.
• Judicial approval will be required for any proposed variation or termination of a DPA. The judge will have power to terminate a DPA either on the prosecutor's application, or on its own motion in the interests of justice. However, the judge will only be able to resurrect the original proceedings on the prosecutor's application.
• No right of appeal is envisaged. The prohibition on judicial review of Crown Court decisions relating to trials on indictment will apply to the DPA process (i.e. to the judge's approval of the DPA). The prosecutor's decision whether or not to prosecute, and whether or not to enter into a DPA, would be subject to judicial review.

This briefing explores these issues in more detail.