Deferred Prosecution Agreements now introduced in the

United Kingdom

By Iohann Le Frapper, Chief Legal Officer for Gulf Bridge International

Vice-Chair, and Vice-Chair of the ICC Commission on Corporate Responsibility and Anti-corruption

On April 2, 2014

Timeline of key milestones:

Bribery Act 2010

Crime and Courts Act 2013 (Section 45) introduced the concept of DPAs ;

14 February 2014 :DPAs Code of Practice issued by the Crown Prosecutions Services (“CPS”) and the SFO ;

24 February 2014: DPAs came into force as a tool available for public prosecutors and the Serious Fraud Office (“SFO”) and an option for companies to consider. Prosecution will remain the main route

1 October 2014 : Definitive Guidelines issued by the Sentencing Council will be applicable to all organisations sentenced on OR after that date, on the ground of fraud, bribery and money-laundering (regardless of the date of the offence).

- 10 steps to be followed

- Offence category to be determined by culpability and harm

What is a DPA ?

Voluntary agreement among the prosecutor and a corporate person

Criminal charges are brought but are suspended subject to satisfying several compliance conditions (e.g. penalties, cooperation, remedial action, monitor)

SFO Director emphasized 2 most important features of DPA :

i. Judicial oversight (to answer with court disapproval of cross-jurisdictional settlement agreements) , and

ii. Unequivocal cooperation (i.e. timely self-reporting, proactive compliance program, disclosure of full and frank internal investigation findings, disciplinary actions will be expected)

Two stage-test for entering into DPA:

i. evidential stage :

– DPA may be offered if evidential test is met (reasonable suspicion of committed corporate offence ; realistic prospect of conviction).

– If not, civil recovery action is a potential route for prosecutor (to recover the proceeds of “unlawful conduct”)

ii. public interest stage:

– Early involvement of a judge in a private hearing to rule whether the proposed DPA : is “in the interests of justice”, and the proposed terms and statement of facts are “fair, reasonable and proportionate”.

Issue : will courts approve DPAs without admission of guilt by companies ?

Key differences with US DPAs:

Allowed for corporate offenders, so commercial organizations only ( not individuals) # US: both individuals and organizations

Settlement of specific offences only(that is fraud, bribery, money-laundering) # US: broad range of criminal activities

Authority to enter into DPAs reserved to heads of CPS and SFO # US

Transparency of process: final court hearing as a public event # US

Key review, approval and oversight role of the judiciary (approval, breach or variation) # discretion of US DoJ

Thank you