On 17 May 2012 the Ministry of Justice
("MoJ") launched a consultation on plans
to introduce a new means of resolving criminal cases in England and
Wales: the Deferred Prosecution Agreement.
Deferred Prosecution Agreements (DPAs), together with
Non-Prosecution Agreements (NPAs), have been used in the United
States for years as a way of resolving criminal cases. They allow
corporates to reach an agreed outcome with the authorities as a
result of wrongdoing, which either the corporate has discovered
itself and reported to the authorities or which the authorities
have become aware of and are investigating. Depending on the
nature and seriousness of the offences involved and also depending
on the level of cooperation by the corporate, the authorities may
agree not to prosecute the offences if the corporate accepts
certain penalties and conditions. Such agreements are made
with very limited judicial involvement (or no involvement at all in
the case of NPAs).
The MoJ's proposal for the introduction of DPAs in England
& Wales, which initially will only be available for corporate
offenders, is based on the US model, but seeks to incorporate a far
greater level of judicial involvement and oversight in the process,
ultimately requiring judicial blessing before a DPA can be agreed.
NPAs are not proposed for England and Wales.
DPAs are intended to provide a tool to prosecutors that will
encourage corporates to cooperate, by giving them meaningful credit
for voluntarily disclosing their conduct and cooperating with the
authorities. This should allow for swifter and more effective
outcomes and for more corporate offending to be brought to light
and dealt with at less cost and with the use of fewer resources
than would be required if traditional routes were followed.
Under a DPA, a prosecution will be "suspended" on
condition that the corporate complies with various requirements
which can range from any or all of: financial penalties;
compensation for victims; disgorgement of the profits of
wrongdoing; and measures to prevent future reoffending or to
"rehabilitate" the company by imposing reporting
requirements, governance improvements or an independent monitor for
an agreed period of time. The terms of the DPA would be publicly
available once approved in open court. Should the conditions not be
observed within the life of the DPA (likely one to three years),
the prosecutor can then resuscitate proceedings.
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