The Crime and Courts Act 2013 will introduce deferred prosecution agreements (“DPAs”) in England and Wales. Such agreements have been regularly used in the USA, particularly for anti-corruption proceedings, and the introduction of DPAs in the UK is being seen as an important practical development alongside the implementation of the Bribery Act in 2011.
A DPA is an agreement between a prosecutor and a commercial organisation in respect of specified economic and financial crimes, such as bribery and corruption. The prosecutor agrees to defer a criminal prosecution in return for admission of wrongdoing and compliance with agreed terms. The terms and conditions of a DPA will be tailored to the particular alleged wrongdoing, but may include payment of a financial penalty, disgorgement of profits, monitoring requirements and implementation of or changes to a compliance programme. The primary incentive for the corporate is avoidance of a prosecution and potential criminal conviction. Once the period of time has expired, and assuming the prosecutor is satisfied with compliance by the corporate of the agreed terms and conditions, the criminal charges may be dropped.
Joint guidance will be issued by the Serious Fraud Office and Crown Prosecution Service to set out general principles as to the use of DPAs in appropriate cases. It is estimated that prosecutors and corporates will be able to enter into DPAs with effect from early 2014.