Introduction of Deferred Prosecution Agreements in the UK in 2014

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Introduction of deferred prosecution agreements in the United Kingdom in 2014 ; regulatory background and timeline; features of the DPAs ; differences with US DPAs.


  • 1. 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

2. 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 3. 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) 4. 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 ? 5. 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 6. Thank you


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