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Deferred Prosecution Agreements

Introduction

A Deferred Prosecution Agreement (“DPA”) is a Court approved agreement between a company, partnership or unincorporated association, referred to in this chapter as “the Company”, and a prosecutor at the CPS or SFO. A DPA may be an appropriate alternative to prosecution of the Company where it would be in the public interest.

Entry into a DPA became possible on 24 February 2014, that being the date upon which Schedule 17 to the Crime and Courts Act 2013 (“the Act”) came into force. However, the Act also applies retroactively. The DPA Code of Practice (“the DPA Code”) was issued by the SFO and CPS as required by the Act. Both the Act and the DPA Code should be referred to in all cases where DPA negotiations are a consideration, where a DPA is approved, and for the duration of a DPA.

DPAs apply only to certain criminal offences that include, but are not limited to: conspiracy to defraud, money laundering, fraud, bribery, and failure to prevent facilitation of foreign tax evasion offences.[1]

Only the Director of the SFO and the Director of Public Prosecutions can agree to a DPA. Once a DPA has been agreed in principle, a preliminary application will be made to the Crown Court in private. Depending on the size and the complexity of the DPA, it can also be heard in the Royal Courts of Justice, albeit sitting as the Crown Court. In the application, the prosecutor asks the Court for a declaration that (1) entering into a DPA with the Company is likely to be in the interests of justice, and (2) the proposed terms of the DPA are fair, reasonable and proportionate.

If the court makes such a declaration, and the DPA is agreed between the parties, the prosecutor will go on to ask the Court for a declaration that (1) the DPA is in the interests of justice, and the terms of the DPA are fair, reasonable and proportionate. The DPA only comes into force if the Court makes such a declaration. The Court must make its declaration, including reasons for it, in open court.

If there is any subsequent breach of the terms of the DPA, the matter can be brought back before the Court. If the Court considers that, on the balance of probabilities, a breach has occurred, the Company could then be prosecuted for the same conduct.

Relevant legislation and guidance

  • The Crime and Courts Act 2013 Schedule 17
  • The Code of Practice for Deferred Prosecution Agreements
  • The Criminal Procedure Rules Part 11
  • The Code for Crown Prosecutors
  • The Joint Prosecution Guidance on Corporate Prosecutions
  • The Bribery Act 2010: Joint Prosecution Guidance
  • The Sentencing Council Fraud Bribery and Money Laundering Offences Definitive Guideline  
  • SFO Corporate Co-Operation guidance
  • SFO Compliance guidance

Chapter outline

Evidential and public interest tests

This section outlines the two-limb evidential test and public interest considerations that need to be met before entering into a DPA, as set out in the DPA Code.

DPA negotiation process

This section deals with the letter of invitation, and agreeing the terms of negotiations or undertakings which includes issues such as confidentiality and information sharing. It also covers managing negotiations and tactical considerations around the negotiation team and use of counsel.

Parallel investigations

This section addresses the possibility of linked concurrent investigations and important considerations such as cross-jurisdictional admissibility and disclosure issues and other practical considerations.

Invitation to enter DPA negotiations

This section deals with internal process around the decision making and who to address the letter to.

Terms of negotiations

This section deals with the confidentiality undertaking and use of material and information provided by both parties during negotiations.

DPA disclosure

This section deals with disclosure obligations for DPAs that are distinct to those applicable to prosecutions under the Criminal Procedure and Investigations Act 1996 (“CPIA”). It also covers the prosecutor’s and investigator’s declarations about the investigation and material provided.

Statement of Facts and Agreement

This sections includes templates and guidance on drafting the necessary documents that are required for the Court application and will usually be published. The first is the statement of facts. This contains a detailed factual explanation of the underlying conduct. The second is the agreement itself that will contain the agreed terms.

DPA terms

This section explores potential standard DPA terms. This includes the length of the DPA, co-operation, compliance measures and reporting, and warranties.

Financial penalty

This section discusses compensation, disgorgement, calculation of the financial penalty, adjustment of fine, costs, instalments and interest. It also addresses the need for obtaining expert and victim statement(s) when including a compensation term.

Court application

This section outlines the content and format of the preliminary and final applications that will need to be submitted in advance to the court. It also deals with the court listing process, the relationship between the preliminary and final hearing, the considerations and expectations for private and public hearings, and publication and press strategy.

After a DPA

This section deals with monitoring compliance, breach, variation, discontinuance and disclosure requests from third parties.

Evidential and Public Interest Tests

In order to enter into a DPA there are two tests that must be applied by the prosecutor: (i) the evidential test and (ii) the public interest test.

Evidential test

To satisfy the evidential test either:[2]

  1. the Full Code Test in the Code for Crown Prosecutors, that is there must be sufficient evidence to provide a realistic prospect of conviction against each suspect on each charge, must be met.[3] OR
  2. there must be at least a reasonable suspicion based upon some admissible evidence that the Company has committed an offence, and that there be reasonable grounds for believing that a continued investigation would provide further admissible evidence within a reasonable period of time, so that all the evidence together would be capable of establishing a realistic prospect of conviction in accordance with the Full Code Test. This limb is analogous to the Threshold Test in the Code for Crown Prosecutors.[4]

In applying the evidential test, the prosecutor should first consider whether the test in (i) above is met. If it is not met, consideration may be given to the test in (ii).[5] In relation to the test in (ii), a reasonable time period will depend on all the facts and circumstances of the case, including its size, type and complexity.[6]

In cases where neither limb of the evidential test can be met at the conclusion of the DPA negotiations and/or it is not considered to be in the public interest to prosecute or enter into DPA negotiations, the prosecutor should consider whether the case is appropriate for a Civil Recovery Order.[7] In these circumstances, reference should be made to the Attorney General’s guidance on asset recovery powers under the Proceeds of Crime Act 2002.

Public interest test

In addition to being satisfied as to the one of the two limbs of the evidential test, the prosecutor must be satisfied that the public interest would be properly met by entering into a DPA with the Company instead of proceeding to prosecution.[8] This requires a balancing exercise of the factors that tend to support prosecution and those that do not. Which factors are considered relevant and what weight is given to each are matters for the individual prosecutor and must be decided on a case by case basis.[9]

Relevant public interest factors

In considering whether a DPA, as opposed to a prosecution, is in the public interest, the prosecutor must have regard to the public interest factors as set out in the Code for Crown Prosecutors.[10]

In addition to this, the DPA Code also sets out further non-exhaustive factors that should be considered. Additional public interest factors in favour of prosecution include:[11]

  • A history of similar conduct (including prior criminal, civil and regulatory enforcement actions against the Company and/or its directors/partners and/or majority shareholders);
  • The conduct alleged is part of the established business practices of the Company;
  • The offence was committed at a time when the Company had no or an ineffective corporate compliance programme and it has not been able to demonstrate a significant improvement in such programme since then;
  • The Company had been previously subject to a warning, sanctions or criminal charges and had nonetheless continued to engage in such conduct or failed to take adequate action to prevent future unlawful conduct;
  • Failure to notify the wrongdoing within reasonable time of the offending conduct coming to light;
  • Reporting the wrongdoing but failing to verify it, or reporting it knowing or believing it to be inaccurate, misleading or incomplete;
  • Significant level of harm caused directly or indirectly to the victims of the wrongdoing or a substantial adverse impact to the integrity or confidence of markets, local or national governments.

Additional public interest factors against prosecution include:[12]

  • Co-operation (see below);
  • A lack of history of similar conduct involving prior criminal, civil and regulatory enforcement actions against the Company and/or its directors/partners and/or majority shareholders. The prosecutor should contact relevant regulatory departments (including overseas where applicable) to ascertain this;
  • The existence of a proactive corporate compliance programme both at the time of offending and at the time of reporting but which failed to be effective in this instance;
  • The offending represents isolated actions by individuals, for example by a rogue director;
  • The offending is not recent and the Company in its current form is effectively a different entity from that which committed the offences. For example:
    • The Company may have been taken over by another organisation;
    • The Company may no longer operate in the relevant industry or market;
    • The Company’s management team may have been completely changed;
    • disciplinary action (including dismissal where appropriate) may have been taken against all the culpable individuals; and/or
    • corporate structures or processes have been changed to minimise the risk of repetition of offending.
  • A conviction is likely to have disproportionate consequences for the Company:
    • These consequences may be under domestic law, EU law or the law of another jurisdiction;[13]
    • In particular, potential consequences such as mandatory and discretionary exclusion from bidding and/or participating in public contracts must be considered, as well as any licencing implications for organisations that operate within a regulated sector.
  • A conviction is likely to have collateral effects on the public, the Company’s employees and shareholders or the Company and/or institutional pension holders.

Co-Operation

Co-operation is a key factor to consider when deciding whether to enter into a DPA. The Company’s co-operation should be evaluated using the SFO’s Corporate Co-operation Guidance.

The DPA Code also lists certain indicators of co-operation, stating that considerable weight may be given to a genuinely proactive approach adopted by the Company’s management team when the wrongdoing is brought to their notice which may include:[14]

  • Within a reasonable time of wrongdoing coming to light reporting the Company’s offending otherwise unknown to the prosecutor (see also below);
  • Taking remedial actions including, where appropriate, compensating victims;
  • Preserving available evidence and providing it promptly in an evidentially sound format;
  • Identifying relevant witnesses and disclosing their accounts and the documents shown to them;
  • Where practicable, making witnesses available for interview when requested;
  • Providing a report in respect of any internal investigation including source documents.
  • Waiving privilege over any LPP material, though the Company can neither be compelled to waive privilege, nor penalised for not waiving privilege.

Self-reporting

Voluntary self-reporting suspected wrongdoing within a reasonable time of those suspicions coming to light is an important aspect of co-operation.[15] When considering a self-report made by the Company, the prosecutor must consider the totality of the information that the Company has provided, the extent to which the offending was previously known, if at all, to the SFO, and the extent to which the Company is providing it voluntarily, that is without the threat of imminent disclosure by a third party or compulsion.

Other guidance

In addition to the Code for Crown Prosecutors and DPA Code, there is other guidance which should be considered at this stage:

  • The Joint Prosecution Guidance on Corporate Prosecutions is joint guidance of the SFO, CPS and the Revenue and Customs Prosecution Office (now part of the CPS) covering prosecution of corporate bodies for offences other than corporate manslaughter. It contains guidance on factors which are in favour and against prosecution of corporates.
  • In relation to bribery cases, the Bribery Act 2010: Joint Prosecution Guidance is also relevant. It contains further guidance on public interest considerations for and against prosecution in relation to each of the specific offences under the Bribery Act 2010.

Parallel investigations

Relevant considerations for cases where a DPA is under consideration and where there is a parallel investigation by an overseas and/or other UK agency will include:

  • Early communication and de-confliction in respect of investigative activity, including interviews and use of statutory powers which may affect admissibility of evidence (e.g. s2 powers, interviews under caution, co-operating suspects).
  • Early communication and de-confliction in respect of interaction with the Company and the Company’s position with respect to the SFO and other agencies on matters such as LPP.
  • Laws regarding disclosure of material in respective jurisdictions (both between agencies and to defendants) and potential impact.
  • Ensuring the terms of negotiations allow for communication and sharing of information provided by the Company with the relevant agencies.
  • Whether the Company has taken a consistent position on the admission of facts and liability in respective jurisdictions.[16]
  • Co-ordination of court listing dates to ensure that resolutions can be approved simultaneously where possible. This may be critical to the confidentiality terms and is likely to be a key concern for the Company to achieve full national and/or global coverage in respect of the conduct.
  • Ensuring liaison between respective press offices.
  • Awareness of different market announcement requirements for public companies in different jurisdictions. For example, when the obligation to make a market announcement is triggered.

Invitation to enter DPA negotiations

Whether to invite the Company to enter into DPA negotiations is a decision for the Director of the SFO. The prosecutor must also consider the requirement for the identification of the full extent of the alleged offending before negotiations can begin[17]. No Company is entitled to be invited to enter DPA negotiations, and an invitation to enter negotiations is no guarantee that a DPA will be offered; a decision may still be made to prosecute should negotiations fail. As such, any references to a potential DPA in communications with the Company should be appropriately caveated to emphasise the uncertainty of the process until the SFO agrees to a DPA and it is approved by the Court.

When inviting a Company to enter DPA negotiations, consideration should be given to the most appropriate addressee of the letter of invitation, especially where the Company is a subsidiary of a larger corporate. Ordinarily the addressee should be the Company itself.

In some instances further factors may need to be taken into account. For example, where the parent company has been the contact with the SFO, it may be considered appropriate to address the letter of invitation to the parent even if it is anticipated that the terms of any DPA would be limited to its subsidiaries. Similar considerations may apply where it is likely the parent company may be required to enter into undertakings in connection with any DPA. In such cases, or in any case where more than one entity in a corporate group is involved, prosecutors will need to consider the application of the confidentiality undertakings contained within the terms of the negotiations document, and whether they should expressly apply to each entity.

Notwithstanding that paragraph 1 (1) of Schedule 17 of the Crime and Courts Act 2013 states that a DPA “is an agreement between a designated prosecutor and a person […]”, it is possible to agree a joint DPA with more than one corporate entity, which may be preferable to separate agreements with each linked company, for example, the parent and its subsidiary.[18]

Formal letter of invitation

The letter of invitation will specify the beginning of the negotiation period, which will only end upon withdrawal by one or both parties from the process, or the approval/refusal of the DPA by the Court at a final hearing.

The letter should explicitly request confirmation from the Company that it wishes to enter into negotiations in accordance with the Act and the DPA Code, and a deadline for a response. It is also good practice to set out a timetable for the completion of negotiations. Case teams should ensure that any individuals authorised to represent the Company in DPA negotiations are not implicated in the matters under investigation such that they may be considered suspects.

Terms of negotiations

Before DPA negotiations can begin it is necessary for terms of negotiations to be agreed in writing. Such terms set out the undertakings agreed between both parties in respect of confidentiality, the use of material provided by both sides during the negotiations, and how the negotiations will proceed. Terms of negotiations should be agreed with specific case issues in mind, but should always include terms addressing the following, as set out in the DPA Code:

  • The use which may be made by the prosecutor of information provided by the Company pursuant to paragraph 13 of Schedule 17 to the Act;
  • The law in respect of disclosure under the CPIA in respect of linked individuals, and;
  • That the information provided by the Company may be disclosed by the SFO as permitted by law. This would include the disclosure of information pursuant to section 3(5) of the Criminal Justice Act 1987, and/or in accordance with the Data Protection Act 2018, such as to other law enforcement and regulatory or prosecution agencies and government departments.[19]

Until such undertakings have been agreed and signed, the prosecutor must not proceed with substantive negotiations.[20] When entering into and agreeing written undertakings, prosecutors should also be mindful of their overall obligations as a legal professional to uphold what is agreed pursuant to the undertakings. This means the undertakings are both capable of being adhered to and that there is an obligation to adhere to those undertakings.[21]

The terms of negotiations should also include:

  • a statement as to the SFO’s responsibility for disclosure of material to the Company pursuant to the DPA Code;
  • a warning to the Company that the provision of inaccurate, misleading or incomplete information where the Company knew or ought to have known that the information was inaccurate, misleading or incomplete may lead to the company being prosecuted for an offence consisting of the provision of such inaccurate, misleading or incomplete information, and/or for an offence or offences which are the subject of an agreed DPA;[22] and;
  • how and when the negotiations will take place, and that the meetings between the parties will be minuted. Those minutes will be agreed and retained.[23]

As noted above, once negotiations have begun, either party is free to withdraw from the process which is an entirely voluntary one.[24]  

Confidentiality

Central to the process of entering into DPA negotiations is the confidentiality attached to: (i) the fact of the negotiations taking place; and (ii) the information and material provided by both parties during the negotiations. Disclosure of such information may present risks in terms of, for example, market impact, reputation of the parties, and shareholders’ interests. Furthermore, the integrity of the DPA process itself is paramount and reliant on confidentiality given that a DPA is not concluded until the Court approves it.

The written undertakings provided by the Company must include undertakings that the information and material provided by the SFO as part of the DPA negotiations will be treated as confidential and will not be disclosed except where the disclosure is:

  • required for the purposes of the DPA negotiations; or
  • required by law.[25]

For each exception, the SFO should require the Company to notify the SFO prior to making the disclosure to ensure that the SFO is able to consider any impact on confidentiality obligations or prejudice to the investigation(s) and any potential prosecution before agreeing to any disclosure.

In addition to the above exceptions to the confidentiality requirements imposed on the Company as prescribed by the DPA Code, the prosecutor may agree to vary the terms with respect to confidentiality at the request of the Company on an exceptional basis. Variations must be agreed in writing and should be dealt with at the time that the disclosure is being sought by the Company. In deciding whether to agree to any such requests, the prosecutor should consider whether the variation is necessary; any statutory or common law safeguards that exist in relation to the disclosure of material to third parties; and whether any confidentiality risks can be sufficiently managed.[26]

The terms of negotiations will include similar undertakings by the SFO with respect to confidentiality that should mirror the Company’s undertakings, but may include additional exceptions to allow the SFO to disclose material to other government agencies where necessary.

The Company’s retention and use of material

As part of the terms of negotiation, the Company must also undertake to retain all relevant material or documentation relating to the matters that the prosecutor is considering prosecuting until the Company is released from this obligation by the prosecutor.[27]

Use of DPA documents other than for purposes of the DPA

Despite the confidentiality restrictions described above, there are two ways the DPA and its related documents (including drafts of DPA documents and materials provided during DPA negotiations) can be used by the prosecutor other than for the purposes of DPA negotiations and the DPA itself:

  • Where a DPA has been approved by the Court, then the statement of facts contained in the DPA is to be treated as an admission by the Company pursuant to s.10 Criminal Justice Act 1967 in any future criminal proceedings against the Company for the alleged offences otherwise covered by that DPA,[28] and;
  • Where the SFO and the Company have entered into DPA negotiations but the DPA is not subsequently approved, certain specified material (listed below) may be used in evidence against the Company:
  • In a prosecution against the Company for an offence of providing inaccurate, misleading or incomplete information;[29] or
  • In a prosecution of some other offence where, in giving evidence, the Company makes a statement that is inconsistent with the information or material provided by the Company as part of the DPA negotiations.[30] However, such information and material is only admissible in these circumstances where the evidence relating to it is adduced, or a question relating to it is asked, on behalf of the Company, in the proceedings arising out of the prosecution.[31]

The following material may be used in evidence against the Company in the specific circumstances set out above:

  • Material showing that the Company entered into DPA negotiations, including:
  • any draft of the DPA;
  • any draft statement of facts that was intended to be included within the DPA;
  • any confirmation that the Company entered into the negotiations; and
  • material that was created solely for the purposes of preparing the DPA or the statement of facts.[32]

Beyond the restrictions set out above there is no limitation on the use to which other information obtained by the prosecutor during the course of DPA negotiations may be put during a criminal trial of the Company and/or linked individuals to the extent that the rules of evidence permit.[33]

In addition, the DPA Code references material that may have been provided by the Company prior to entering into DPA negotiations that could be used in criminal proceedings against the Company. For instance, any internal or independent report provided by the Company or any notes of interview or witness statements from an employee of the Company.

Disclosure

For the purpose of DPAs, the rules on disclosure imposed by the CPIA do not apply and the framework for disclosure is instead provided by the DPA Code.  

Pursuant to the DPA Code, the prosecutor must provide disclosure sufficient to ensure that the Company has enough information to play an informed part in the negotiations. The purpose of such disclosure is to ensure that negotiations are fair and the Company is not misled as to the strength of the prosecution case. The DPA Code includes the pre-CPIA requirement for the prosecutor to remain alive to the potential need to disclose material in the interests of justice in the particular circumstances of the case.[34] It provides an example of disclosure that ought to be made such as any information that might undermine the factual basis of conclusions drawn by the Company from material that it has disclosed.[35]

The agreed terms of negotiation, as referred to in ”Terms of negotiations” above should contain a statement of the disclosure obligations as outlined in the DPA Code.[36] These obligations only arise once the terms of negotiations have been agreed and signed.

Disclosure strategy

Where the Company has played a leading role in obtaining and reviewing its own material, for example where it has conducted an internal investigation and/or self-reported the wrongdoing that is the subject of the SFO’s investigation, it should have sufficient knowledge of the strength of that evidence. In such cases, the disclosure obligations imposed by the DPA Code would require only that the SFO disclose any additional information which could undermine any conclusions that might be drawn from the face of these documents, or affect the admissibility of that evidence. For clarity, agreement should be sought from the Company before negotiations begin that the SFO will not provide it with material originating from the Company for disclosure purposes. Any requests from the Company for disclosure should be specific and justified.[37]

The extent of the investigation conducted by the Company is also a relevant factor, and where an investigation leads to evidence from a source that may be inaccessible to the Company, such as an overseas authority, it may be appropriate for the SFO to review such material for DPA disclosure purposes. If linked individuals have been charged and evidence served, consideration should be given to disclosing the evidence served on individual defendants to the Company as part of DPA disclosure.

Where the Company is or may become a party to civil proceedings, it may have disclosure obligations towards other civil parties under the Civil Procedure Rules Part 31. A civil judge will need to balance any objections to the onward disclosure of material provided for the purpose of DPA negotiations against the ordinary rules on disclosure in such cases.[38]

Declarations

Before a DPA application can be made, the prosecutor must make a written declaration to the court that:

  1. The investigator enquiring into the offence or alleged offences has certified that no information has been supplied which the investigator knows to be inaccurate, misleading or incomplete; and
  2. The prosecutor has complied with the prosecution obligation to disclose material to the defendant.[39]

In order to make this declaration, the prosecutor should request that the investigator, usually the Principal Investigator, provide written certification to the prosecutor that any material retained by the investigator which may satisfy the test for prosecution disclosure as outlined in the DPA Code has been drawn to the attention of the prosecutor.[40]

The effect of the declaration required is to confirm a review has been carried out to identify material held by the SFO, the non-disclosure of which would make the negotiations unfair and/or mislead the Company as to the strength of the evidence. This is not necessarily a review of all relevant material in the possession of the SFO. What steps are reasonable, and therefore proportionate, will depend upon the issues in the case, the source of the material held, and the knowledge of the Company. The documented strategy for DPA disclosure should identify the relevant factors and rationale behind the review and what is disclosed. The outcome of this review should be communicated clearly to the Company. Just as with disclosure under CPIA, the prosecutor and the Principal Investigator/Disclosure Officer should work together to conduct DPA disclosure in a ‘thinking manner’[41]. The disclosure duty of the prosecutor under the DPA Code is a continuing one and the prosecutor must disclose any material that comes to light after the DPA has been agreed which satisfies the test for disclosure as outlined in the DPA Code.

Statement of Facts

A DPA application must include a statement of facts that will be published following any court approval.[42] This statement of facts must give particulars relating to each alleged offence[43] and include details, where possible, of any financial gain or loss with reference to key documents which must be attached.[44]

The Court does not have the power to adjudicate on factual differences, therefore the parties should resolve any such differences between themselves before proceeding with the application.[45] There is no requirement for formal admissions of guilt[46] in respect of the offences charged on the indictment.[47] However, the Company must admit the contents and meaning of key documents referred to in the statement of facts.[48]

In the event that the Company is prosecuted for the alleged offence(s), the statement of facts would be admissible against the Company in accordance with section 10 of the Criminal Justice Act 1967 against the Company in any criminal proceedings.[49] Where linked individuals are prosecuted following a DPA, the statement of facts and DPA itself may be admissible, though this will depend upon a number of case specific factors. See ”Terms of negotiations” above that refers to circumstances where DPA documents may be admissible.

The final statement of facts will ultimately be a public document and should be drafted accurately, concisely and in a way that it is accessible to all. When detailing the gains and losses made it can be helpful to distil complex transactions down to key transactions and summarise complex payment trails. In respect of a bribery case, it may be sufficient to simply list the dates and amounts of the corrupt payments.

Naming of relevant parties

Once approved by the court, the DPA (including the statement of facts[50]) must be published unless prevented by any court order.[51]

Unless exceptional circumstances apply, cases which are subject to DPA negotiations are private and confidential, governed by undertakings in respect of (i) the confidentiality of the fact that DPA negotiations are taking place; and (ii) the confidentiality of information provided by the prosecutor and the Company,[52] as set out at ”Terms of negotiations” above. Ordinarily the decision to vary confidentiality terms will be dealt with on a case by case basis at the point at which disclosure is considered. Generally the consultation of third parties on the drafting of the statement of facts is not permitted. Consideration must be given to the necessity for and impact of the identities of third parties being published and whether this would be compliant with the Data Protection Act 2018 and the European Convention on Human Rights. In some cases anonymization of the identity of third parties in the statement of facts may be appropriate prior to publication.

Where charges against individuals have been brought or are contemplated, it is possible that any publication of the DPA may pose a risk of prejudice to the administration of justice in such linked proceedings. In this case, the court may order that publication be postponed if necessary to avoid that risk.[53] Ordinarily such delayed publication should only apply to the statement of facts since the DPA itself and the court’s judgment will probably not include information tending to identify individuals. Moreover, in some cases the risk of prejudice may be addressed by publishing a redacted or (further) anonymised statement of facts. Consideration should also be given to the application for an order under section 4(2) of the Contempt of Court Act 1981 for reporting restrictions. The prosecutor should also consider whether any human rights issues in other jurisdictions pose any risk(s) to naming individuals and/or entities.

DPA terms

All DPA terms must be “fair, reasonable and proportionate” and this is a key consideration for the court in determining whether to approve a DPA.[54] Standard terms are set out below, to be adapted as necessary.

Indictment and acceptance of responsibility

Standard terms as described in the DPA Code include the Company’s agreement that:

  • The SFO will prefer an indictment;
  • The statement of facts is true and accurate; and
  • The statement of facts will constitute a section 10 Criminal Justice Act 1967 admission.

While there is no requirement for the Company to formally admit guilt in respect of the offences charged in the indictment, consideration should be given to including admissions where appropriate[55].

Term of the agreement

The DPA must specify an expiry date[56] and the time period must be sufficient to ensure that the Company is capable of complying with the obligations in the DPA[57]. Consideration should also be given to the time required for the company to complete the following obligations when determining the expiry date:

  • Co-operation with ongoing investigations and prosecutions, in particular, those of linked individuals;
  • Fulfilment of the financial obligations, including payment of compensation, disgorgement, financial penalty and costs, which may be in instalments if strong evidence is provided for doing so;
  • Implementation/improvements to the Company’s compliance programme; and
  • (if applicable) a monitor’s assessment or external review of the organisation’s implementation/improvement of a compliance programme.

Scope of agreement

A DPA has the effect of deferring prosecution of the offences charged in the indictment. The DPA should not include any term which would prevent the Company from being prosecuted for conduct not in the indictment even where the conduct not charged has been disclosed during the course of DPA negotiations.[58]

To make the SFO’s compliance with the DPA Code clear, the DPA should expressly state that:

  • It does not provide any protection against prosecution for conduct not charged in the indictment, even where the conduct has been disclosed during the course of DPA negotiations but not charged;
  • It does not provide any protection for future criminal conduct committed by the Company; and
  • It does not provide any protection against the prosecution of linked individuals.

Deferred prosecution

The DPA should make clear in its terms:

  • The reasons why the prosecutor is deferring prosecution, i.e. the factors the prosecutor has taken into account;
  • That it is the prosecution on the indictment that is being deferred;
  • That deferral of prosecution is based on compliance with the obligations in the DPA; and
  • That prosecution may be reinstituted if it transpires that inaccurate, misleading or incomplete information was provided as part of the DPA process.

Co-operation

This is an important provision in any DPA, particularly where there are likely to be further investigations and/or prosecutions relating to the matters addressed in the statement of facts.[59] The SFO Corporate Co-operation Guidance should be considered to see if there are any behaviours referred to which should be expressly referred to in this term of the DPA, whereby the Company agrees to provide assistance to the SFO above and beyond that otherwise required by the law.

Co-operation requirements which ordinarily should be included in any DPA include:

  • Retention of material gathered as part of any internal investigation;
  • Co-operation with any and all SFO pre-investigations, investigations and prosecutions
  • Co-operation, at the request of the SFO, with investigations by other domestic and foreign agencies relating to the matters in the statement of facts;
  • Provision of relevant material to be used for the purposes of the investigation and any prosecution;
  • Making relevant individuals available for interview where possible; and
  • Self-disclosure of any new conduct which may reasonably fall within the SFO Statement of Principle.  

Financial terms

The DPA Code specifies that compensation, donation to charities, disgorgement, financial penalty and costs may be included in the terms of a DPA.[60] These are dealt with in more detail in ”Financial terms” below.

Corporate compliance programme

A DPA may require a Company to implement a compliance programme and/or to make changes to an existing compliance programme.[61] Any such term could include any specific requirements deemed necessary and proportionate such as the use of data analytics to test compliance controls and behaviour. The Company’s compliance programme should be carefully scrutinised at an early stage of the investigation to assess its effectiveness. A compliance programme must be proportionate, risk-based and regularly reviewed and tested, and the Company should be able to evidence that its programme has these traits, is adopted at board level and is sufficiently well-resourced. Where appropriate, the SFO may bring in external resources to assist in the assessment of the Company’s compliance programme.[62]

Monitors

A DPA may also include a requirement for the appointment of a monitor to assess and monitor the Company’s internal controls, advise on necessary compliance improvements that will reduce the risk of future recurrence of the conduct upon which the indictment is based, and report wrongdoing to the prosecutor. Like all other terms of a DPA, however, a monitorship must be fair, reasonable, and proportionate[63].

As the DPA Code acknowledges, no two monitorships will be exactly the same, but ordinarily, relevant considerations for a monitorship are:

  • Ensuring the monitor has access to the relevant parts of the business;
  • Determining the frequency of reports from the monitor;
  • Identifying the length of time the monitor will be appointed;
  • Clearly identifying the criteria by which the monitor should evaluate the Company’s compliance programme; and
  • Ensuring confidentiality of the monitor’s reports.

Sections 7.11–7.22 of the DPA Code provide specific guidance as to how a monitor should be appointed and what specific controls, policies, and procedures the monitor should look to when evaluating the Company’s compliance programme, and encourage the prosecutor to have regard when designing a monitorship to “contemporary external guidance on compliance programmes,” including that issued by the Ministry of Justice and the OECD and the U.S. Department of Justice.  

Less onerous alternatives to a monitorship can also be considered such as an external reviewer, to be agreed by the SFO. Careful consideration will need to be given to the process of selection, in particular any conflicts of interest.

Sale or merger

Provision should be made for what will happen if there is a sale, merger, or other change in corporate structure by, of, or otherwise relating to the Company during the DPA period.

Ordinarily, the DPA should require that:

  • The prosecutor’s consent be obtained before any such sale/merger; and
  • The obligations under the DPA be transferred to the new entity.

Public statements

The integrity of the DPA process is undermined if the Company is able to misrepresent its admissions in the statement of facts (or any other aspect of the DPA) once the DPA has been agreed. In order to guard against this possibility, a DPA should ordinarily require that the Company.

  • Does not make any public statements which are inconsistent with the DPA; and
  • Consults with the SFO press office before making any press release regarding the DPA.

Warranty

Prior to the application for preliminary approval of the DPA, the Company must provide a warranty that:

  • The information provided to the SFO does not knowingly contain inaccurate, misleading or incomplete information;
  • It will notify the SFO if it becomes aware of any documents which would be relevant to the offences in the indictment;
  • It consents to its legal advisors providing a warranty in these terms; and
  • The warranty from the legal advisors will be in a separate document.

Financial terms

Introduction

It will normally be fair, reasonable and proportionate for a DPA to include a financial penalty[64], as well as the following, where possible:

  1. compensation to victims;
  2. disgorgement of profits;
  3. payment of prosecution costs;
  4. donations to charities which support the victims of the offending.

There should be a transparent and consistent approach to the setting of financial terms that is analogous to the sentencing framework for setting fines.[65]

Compensation

The Sentencing Council Guideline, “Corporate offenders: fraud, bribery and money laundering”’ (“the Sentencing Guideline”) places consideration of compensation as the first step of the sentencing exercise and refers to compensation as having priority over payment of any financial penalty.[66]

With respect to the SFO’s commitment to victims and witnesses, the SFO will try to obtain financial compensation wherever possible, and taking into account the considerations listed below. Where possible compensation should be fully explored with the relevant victim(s) as part of the investigation and DPA negotiation process and any victim impact statement obtained.[67] It should be noted that the SFO is not seeking a compensation order[68] from the court when it enters a DPA but is making compensation a required term of the DPA.    

Relevant considerations in deciding whether compensation should be a term of the DPA may include:

  1. Whether a victim can be identified[69];
  2. Whether the relevant wrongdoing has caused the loss;
  3. Whether any loss is quantifiable so that it can be used as a basis for compensation. For example, in bribery cases, this could be the cost by which a contract has been inflated to take into account a bribe payment. If defective goods were sold on a corrupt contract, this could also be the value of an adequate replacement;
  4. If not easily quantifiable, whether the civil courts would be a better forum to resolve the issue and the likelihood of this happening;
  5. What steps the victim has already taken to recover their loss, and, if they have, how much has been recovered, or is likely to be recovered;
  6. The risk that the payment of compensation to any overseas victims might lead to the funds being vulnerable to corruption once again, and the extent to which such risks can be mitigated (e.g. by auditing the compensation payment);
  7. Whether a financial payment is the best means of achieving compensation or other measures are possible (e.g. provision of equipment);
  8. Whether it is practicable to obtain the views of victims and, if so, what those views are;
  9. Where there are victims in other jurisdictions, the case team will need to consider:
    1. General Principles to compensate overseas victims (including affected States) in bribery, corruption and economic crime cases agreed between the SFO, CPS and NCA (published on 1 June 2018);
    2. Obtaining any victim impact statement that can be provided by individuals or companies and/or any relevant country expert statement where loss may have had a more widespread impact.
  10. Early engagement with the Foreign Commonwealth and Development Office, HM Treasury and any other relevant government department that may also be a victim itself.

Compensation is usually paid to the victim directly by the compensating party or through an intermediary agreed by the parties and approved by the Court.

Where it is not possible to agree compensation, reasons for this must be given in the DPA application.

Disgorgement of profits

Step 2 of the Sentencing Guideline requires confiscation to be considered in cases of conviction. In the circumstances of a DPA confiscation is not possible as there is no conviction. However, disgorgement is an equivalent requirement that may be included in a DPA.[70]

Calculating the profits to be disgorged

Calculating the profits achieved on account of the relevant conduct may not be a straightforward exercise; and it may be helpful to obtain accountancy expertise.

Financial penalty

The amount of any financial penalty must be broadly comparable to the fine that a court would have imposed on conviction for the alleged offending following a guilty plea.[71]

In the context of a prosecution, the appropriate level of any fine must reflect the seriousness of the offence and requires the court to take into account the financial circumstances of the offender.[72] An analogous approach is required in relation to a DPA.

In practice, this means that the financial penalty is calculated with reference to sentencing principles of culpability and harm that are set out in the Sentencing Council Guideline “Fraud, bribery and money laundering: corporate offenders” (“the Sentencing Guideline”). It states that harm is to be represented by way of a financial sum, being the “amount obtained or intended to be obtained (or loss avoided or intended to be avoided)”.[73] Culpability is represented by an assessment of the extent of the Company’s role in the wrong-doing and motivation.

The Sentencing Guideline requires that the financial penalty is calculated subject to a multiplier linked to culpability and harm, and identifies a non-exhaustive hierarchy of culpability characteristics which are used to determine whether the conduct falls into three different categories of culpability: High (A), Medium (B) or Low (C). Ordinarily, defendants in SFO cases have High (A) culpability. Once the culpability category has been established, Step 4 of the Sentencing Guideline identifies harm multiplier ranges for the different categories of culpability including the relevant starting point for each category. Step 4 goes on to provide a non-exhaustive list of aggravating and mitigating factors which are used to adjust the harm multiplier from the relevant starting point. Whilst staying within the range of the Sentencing Guidelines there is scope for flexibility in respect of the harm multiplier, depending on the specific details of each case, in particular by applying relevant aggravating and mitigating factors that are for the prosecutor to determine.

Discount

Any financial penalty under a DPA must be discounted in a manner comparable to a fine imposed upon a conviction after a guilty plea. The calculation should therefore take into account any potential reduction for a guilty plea in accordance with section 144 of the Criminal Justice Act 2003 and the Sentencing Council’s “Reduction in sentence for a guilty plea: Definitive guideline”. Current guidelines provide for a one third discount for a guilty plea entered at the earliest opportunity.

The level of the discount applied to the financial penalty should be determined based in large part on the nature and extent of the Company’s co-operation with the SFO’s investigation. In the majority of DPAs to date, the court has approved terms permitting discounts of 50% in recognition of the levels of co-operation demonstrated.

Adjustment of financial penalty

The Sentencing Guideline “includes provisions for taking a “step back to consider the overall effect of its orders including financial terms.”[74] This should be considered in all cases but will be particularly relevant where the Company is able to demonstrate substantial financial hardship. Whether the imposition of financial terms has the effect of putting the Company out of business will be relevant. A number of other relevant factors may be considered such as the impact of any fine on employees and/or shareholders and the impact of any fine on the ability of the Company to implement effective remedial and compliance measures. There is also provision to allow time to pay and payment in instalments that can be incorporated into the DPA terms.

In relation to taking a “step back”, the Company will need to provide evidence to the prosecutor in advance of the application. This may include: annual accounts; management accounts; cash flow forecasts and projections; articles of incorporation and company structure; inter-company loans; relevant management judgements such as write offs, provisions, bad debts etc.; business plans and annual reports.

Costs

The prosecutor should in all cases seek to recover the costs of the investigation, and any other costs incurred by the prosecutor during the DPA process.

Other considerations

Consideration should also be given to any interest that is applicable on instalments, and the prevention of tax relief for the Company in respect of financial terms.

Where DPAs or other resolutions are agreed in multiple jurisdictions, consideration will also need to be given to their respective financial terms and how they are offset or apportioned in those jurisdictions.[75]

Court application

Schedule 17 of the Crime and Courts Act 2013 establishes a two-stage process for judicial approval of a DPA, which is further developed and explained in two additional sources: Sections 9–11 of the DPA Code and the Criminal Procedure Rules 2015 11.2–11.4. Any application to approve a DPA should be made only to Southwark Crown Court. The Resident Judge will refer the matter to the President of the Queen’s Bench Division (“PQBD”) for listing. 

Once the parties have agreed in principle to DPA terms, the prosecutor should prepare a written application to the Court for approval of the DPA. While this preliminary application is not a joint submission by the parties, ordinarily the prosecutor should share the draft preliminary application with the Company and consider any edits proposed by the Company.

The preliminary application must be heard in private[76] and while there is a presumption that the final application hearing will be heard in open court, it may also be heard in private. In all cases where the Court grants final approval to the DPA, the Court’s declaration to that effect (and the reasons for it) must be made in open court.

The length of time between the two hearings will depend on what, if any, further steps are required following the preliminary hearing. The court can adjourn a preliminary hearing if it is considered necessary to obtain further information about the facts or terms of a proposed DPA.[77]

Preliminary application

The content of the application to approve a proposal to enter into a DPA is governed by the Criminal Procedure Rules 2015, Part 11. Under this provision the prosecutor must, after negotiations have commenced but before the terms have been “settled”, make a written application[78] and serve this on the Court and the Company.[79] When requesting a listing the prosecutor should provide an agreed and realistic time estimate, and submit all documentation confidentially and well in advance of the hearing.[80]

The written application must include the following:[81]

  • Identification of the parties to the proposed agreement;
  • A draft indictment setting out the alleged offences;
  • Statement of facts and any necessary key documents;
  • Any information about the Company that would be relevant for sentencing in light of a conviction for the offences;
  • The proposed expiry date of the agreement;
  • Proposed terms of the agreement, including financial penalty, disgorgement, compensation and prosecution costs, and timeframe for payment;
  • Any arrangements to be made in relation to management of the Company’s business;
  • Co-operation required of the Company in connection with any investigation related to the offences;
  • Any other action required of the Company;
  • Any arrangements to monitor the Company’s compliance with a term;
  • Consequences of the Company’s failure to comply with a term;
  • Confirmation of how the terms comply with the DPA Code and any sentencing guidelines or guideline cases that apply;
  • The Company’s written consent to the proposal; and
  • Reasons why entering into the agreement is in the interests of justice and the proposed terms of the agreement are fair, reasonable and proportionate.

In addition to the above, the application bundle should also include the following:

  • The Company’s warranty;
  • The Company’s legal representative’s warranty;
  • Relevant financial statements/material/analysis to assist with financial terms;
  • Any victim impact statement(s) or impact statements for business (in the case of an organisational victim);
  • Relevant statutes and other authorities.

If the proposed statement of facts includes assertions which the Company does not admit, then the application must specify the facts which are not admitted and explain why this is immaterial for the purposes of the proposal to enter in to the agreement.[82] Ordinarily, the proposed statement of facts should include no such assertions, as the parties should have agreed the terms and underlying facts in respect of any DPA before an application is made, and the court cannot adjudicate on any differences.

The preliminary application must explain why entering into the draft DPA is in the interests of justice and is fair, reasonable and proportionate.[83] In doing so the prosecutor must address issues including: any concurrent jurisdiction(s) over the wrongdoing upon which the charged offences are based, any on-going and/or subsequent ancillary proceedings, and any conduct outside the DPA which the Company has disclosed to the prosecutor but which does not form part of the draft indictment on account of the evidential and/or the public interest stage tests having not been met.[84]

If, following final approval of the DPA, the publication of any documents related to the DPA pursuant to section 8(7) of Schedule 17 should be delayed pursuant to section 12 of Schedule 17 (on the grounds that postponement is necessary to avoid a substantial risk of prejudice to the administration of justice in any legal proceedings), this should be included in the preliminary application with an explanation. An application for reporting restrictions under section 4(2) Contempt of Court Act 1981 should also be considered.  

Final application

A final application will be made once the Court has approved the proposal to enter into an agreement at the preliminary hearing, in order that the court can make a declaration that the DPA is in the interests of justice, and that the finalised terms of the DPA are fair, reasonable and proportionate.[85] The final terms of the DPA will be explained in the final application accompanied by the final DPA terms themselves, agreed statement of facts, draft indictment and the prosecutor’s confirmation of which evidential test has been passed. The documents must be confidentially submitted prior to the hearing.[86] The content of the final application is governed by Criminal Procedure Rules 2015 11.4, and the final application must be served on the court and the Company.[87]

Ordinarily, the final application will be considerably shorter than the preliminary application, but it must:[88]

  • Attach the final agreement, signed by the Director of the SFO and the Company;
  • Indicate, in what respect, if any, the terms of the agreement differ from those in the application under 11.3 of the Criminal Procedure Rules 2015;
  • Contain or attach the Company’s written consent;
  • Explain why the agreement is in the interests of justice and the terms are fair, reasonable and proportionate;
  • Attach a draft indictment charging the Company with the offences; and
  • Include any application for the hearing or part of the hearing to be in private.

If the court approves the agreement and draft indictment then the court offices must endorse any paper copy of the draft indictment with an indictment number and a note to identify it as an indictment approved by the court and the date of the court’s approval and treat the case as if suspended by an order of the court.[89]

Publication

If at the final hearing the court declares that the DPA is in the interests of justice and that its terms are fair, reasonable and proportionate, section 8(7) of Schedule 17 requires the prosecutor to publish the following documents:

  • The DPA itself (which includes the statement of facts);
  • The court’s preliminary declaration/approval regarding the then-proposed DPA (including the court’s reasons for making that preliminary declaration/approval);
  • if the court initially declined to make a preliminary declaration, the court’s reasons for initially declining to make a preliminary declaration; and
  • The court’s final declaration/approval regarding the DPA (including the courts reasons for making that final declaration/approval)

This may be modified according to any order of the court for delayed publication pursuant to section 12 of Schedule 17 (see above).

The court’s declarations and reasons regarding the DPA ordinarily will take the form of a written judgment. The court may elect not to produce a separate written judgment for its preliminary declaration and its final declaration, instead combining both into a single written judgment published following the final hearing. The judgment will require fact and typographical checking by all parties before publication.

After DPA approval

Compliance with terms

The DPA will include a number of obligations that the Company needs to comply with during its term, see sections ”DPA terms” and “Financial terms” above. These are likely to include obligations relating to the payment of financial penalties, future co-operation, reporting in relation to the Company’s compliance programme and reporting any suspected wrongdoing.

If any suspected wrongdoing relating to the Company is self-reported, or is otherwise discovered, during the term of the DPA, the prosecutor should consider what if any impact such conduct has on the Company’s obligations under the DPA, the SFO’s investigation of the Company.

Breach of a DPA

The following paragraphs apply where it is believed the Company may have failed to comply with the terms of the DPA.

Rectifying the breach

If during the DPA the Company is believed to have failed to comply with a term of the DPA, the prosecutor should write to the Company identifying the alleged failure and asking that it be rectified immediately. If the Company rectifies the breach immediately, the prosecutor need not apply to the court seeking a finding that the Company is in breach of the DPA, but nevertheless must publish details of the breach and should notify the court of any such developments.[90]

If it is not possible to rectify the Company’s failure in this manner, the prosecutor may apply to court seeking a finding that the Company is in breach of the DPA and an appropriate remedy. The remedy sought will depend on the circumstances of the case. The question of whether or not there has been a breach is determined on the balance of probabilities and the successful party to the application may seek costs from the other party.[91]

If the court finds that the Company is in breach of the DPA, it may invite the parties to agree a suitable proposed remedy. If agreement can be reached the parties must then apply to Court for the agreement to be recorded as a formal variation to the DPA. The Court will only approve such a variation if the terms of the DPA (as varied) are fair, reasonable and proportionate.[92]

Termination

In the case of a significant or substantial breach, or in the case of a less significant breach for which the parties are unable to agree a suitable remedy, or in the case of a less significant breach for which the court does not approve the proposed remedy, the Court may order that the DPA be terminated.[93]

If the Court makes such an order the DPA shall cease to have any effect from that point onwards; and the prosecutor may apply to have the suspension of the indictment covered by the DPA lifted.[94]

Where a DPA has been terminated in this way, the Company is not entitled to the return of any monies paid under the DPA prior to termination, or to any other relief for detriment arising from its compliance programme up to that point (for example, the costs of a monitoring programme). The prosecutor may also seek its costs in respect of the application from the Company.[95]

In any application made to the Court in respect of an alleged breach, the prosecutor must publish the decisions and reasons of the court.[96]

Applying for a suspension of the indictment to be lifted and re-instituting criminal proceedings

Following the termination of the DPA, it will be usual for the prosecutor to apply for the suspension of the indictment to be lifted and for the Company to be prosecuted.[97] If successful, this will have the effect of re-instituting criminal proceedings against the Company.

Before re-opening proceedings, the prosecutor must be satisfied that the Full Code Test under the Code for Crown Prosecutors is met in relation to each charge. The Court will have been informed at the final hearing if the original charge was pursuant to the second limb of the evidential test, in which case the prosecutor will now need to be satisfied that the more stringent evidential stage of the Full Code Test is met and that, the public interest test would (still) be satisfied by prosecuting the Company.[98]

If the prosecutor requires time before being in a position to re-open proceedings the Court should be informed of the prosecutor’s proposed course of action and then kept informed of progress.[99]

Variation of a DPA

There are two possible situations when a variation to the terms of a DPA may be necessary. The first is where an application has been made by the prosecutor in respect of an alleged breach and the Court has invited the parties to agree a solution to that breach, as described above. The second is where a breach has not yet occurred but, unless the DPA is varied, it is likely to. However, such a variation will only be approved by the Court in these circumstances where the request has arisen from circumstances that were not and could not have been foreseen by the prosecutor or the Company at the time the DPA was agreed.[100] This will be decided on a case-by-case basis. Approval to vary will not be granted for mere convenience or efficiency. In the vast majority of cases the terms of the DPA (as originally approved) must be strictly complied with in their entirety.[101]

In both situations, the prosecutor must apply to the Court to seek a declaration that the variation is in the interests of justice; and that the terms of the DPA as varied are fair, reasonable and proportionate.[102]

Only the prosecutor may ask the Court for a variation. The Company does not have a right to apply to Court itself; it may only ask the prosecutor for a variation.[103]

Whether the variation is approved or not, the Court must give its declaration to that effect in open court that must be published (subject to the exception in paragraph 12 of Schedule 17 of the Act, where postponement of publication is necessary to avoid prejudicing proceedings).[104] Costs in respect of the application may be sought.[105]

Discontinuance

On the expiry of the DPA, assuming it has been complied with, the prosecutor should give notice to the Court that it does not want proceedings to continue.[106] Where appropriate, consultation with any monitor should take place prior to discontinuance.[107]

Discontinuation notices should be sent to the Court as soon as practicable after the decision to discontinue and a copy should be sent to the Company.[108] The notice should contain the effective date of discontinuance, the offences to be discontinued, and confirmation that the DPA has expired.[109]

No notice of discontinuation is needed where the court terminates the DPA.[110]

A DPA will ordinarily expire on the date specified in the agreement.[111] Where proceedings are discontinued following the expiry of a DPA, the prosecutor must publish: (i) the fact that the proceedings have been discontinued; and (ii) details of the Company’s compliance with the DPA, unless there are grounds for delaying publication.[112]

Once proceedings are discontinued under paragraph 11(1) of Schedule 17 to the Act, fresh proceedings against the Company for the same offence may not be instituted unless the conditions specified in paragraph 11(3) (provision of inaccurate, misleading or incomplete information by the Company) are satisfied.[113]

[1] See Crime and Courts Act 2013 Schedule 17, Part 2

[2] DPA Code, paragraph 1.2 (i) (a) and (b)

[3] Code for Crown Prosecutors, paragraph 4.6

[4] Code for Crown Prosecutors, paragraphs 5.1-5.11

[5] DPA Code, paragraph 1.4

[6] DPA Code, paragraph 1.5

[7] DPA Code, paragraph 1.7

[8] DPA Code, paragraph 1.2(ii)

[9] DPA Code, paragraph 2.6

[10] DPA Code, paragraph 2.8

[11] DPA Code, paragraph 2.8.1

[12] DPA Code, paragraph 2.8.2

[13] Consider Article 5 of the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions particularly in respect of key industry sectors and large corporations

[14] DPA Code, paragraph 2.8.2(i)

[15] The failure of a Company to self-report is not a bar to DPA negotiations per se but must be considered as a factor when assessing whether a DPA is in the public interest.

[16] Note the admission of liability is not a requirement of a DPA in England & Wales though it may be required in other jurisdictions, for example, in a United States Department of Justice corporate resolution.

[17] DPA Code, paragraph 2.2 (ii)

[18] See also s.6 of the Interpretation Act 1978 that states unless the contrary is stated, words in the singular include the plural.

[19] DPA Code, paragraph 3.7

[20] DPA Code, paragraph 3.11

[21] The Solicitors Regulatory Authority (“SRA”) Handbook states that an undertaking “…means a statement, given orally or in writing, whether or not it includes the word “undertake” or “undertaking”, made by or on behalf of you or your firm, in the course of practice, or by you outside the course of practice but as a solicitor or REL, to someone who reasonably places reliance on it, that you or your firm will do something or cause something to be done, or refrain from doing something.   The SRA Handbook states as an outcome that must be achieved at O(11.2) that “…you perform all undertakings given by you within an agreed timescale or within a reasonable amount of time”.

[22] DPA Code, paragraph 3.8 (ii)

[23] DPA Code, paragraph 3.4 (i)

[24] DPA Code, paragraph 3.3

[25] DPA Code, paragraph 3.9(i)

[26] DPA Code, paragraph 3.10

[27] DPA Code, paragraph 3.9 (ii)

[28] Crime and Courts Act 2013 Schedule 17, paragraph 13(2)

[29] DPA Code, paragraphs 4.2 and 4.3; Crime and Courts Act 2013 Schedule 17, paragraph 13(4)(a)

[30] Crime and Courts Act 2013 Schedule 17, paragraph 13(4)(b)

[31] Crime and Courts Act 2013 Schedule 17, paragraph 13(5)

[32] Crime and Courts Act 2013 Schedule 17, paragraph 13(6)

[33] DPA Code, paragraph 4.5

[34] R v DPP ex parte Lee [1999] 2 All ER 737

[35] DPA Code, paragraph 5.2

[36] DPA Code, paragraph 5.2

[37] DPA Code, paragraph 5.3

[38] See Omers Administration Corporation & Ors v Tesco plc [2019] EWHC 109 (Ch)

[39] Criminal Procedure Rule 12.2(3)(b) and DPA Code, paragraph 5.5 (i) & (ii)

[40] DPA Code, paragraph 5.6

[41] See R v Olu, Wilson and Brooks [2010] EWCA Crim 2975 at paragraph 42 quoted in the Attorney General’s Guidelines on Disclosure 2013, paragraph 10

[42] DPA Code of Practice, paragraph 6.1.

[43] DPA Code of Practice, paragraph 6.1 (i).

[44] DPA Code of Practice, paragraph 6.1 (ii).

[45] DPA Code of Practice, paragraph 6.2.

[46] However under the Crime and Courts Act 2013, Schedule 17 paragraph 5 (1) the statement of facts may include admissions

[47] DPA Code of Practice, paragraph 6.3.

[48] Ibid.

[49] DPA Code of Practice, paragraph 6.4; Crime and Courts Act 2013, Schedule 17 paragraph 13(2)

[50] Crime and Courts Act 2013, Schedule 17, paragraph 5 (1)

[51] Crime and Courts Act 2013, Schedule 17, paragraph 8 (7)

[52] DPA Code of Practice, paragraph 3.10

[53] Crime and Courts Act 2013, Schedule 17, paragraph 12

[54] Crime and Courts Act 2013, Schedule 17, paragraph 8(1)(b)

[55] Crime and Courts Act 2013, Schedule 17, paragraph 5(1)

[56] Crime and Courts Act 2013, Schedule 17, paragraph 5(2)

[57] DPA Code, footnote 4; DPA lengths to date have ranged from three to five years.

[58] DPA Code, paragraph 7.7 (i) and footnote 5

[59] DPA Code, paragraph 7.8 (iii) and footnote 7

[60] DPA Code, paragraph 7.9

[61] Crime and Courts Act 2013, Schedule 17, paragraph 5(3) (e)

[62] DPA Code, footnote 2

[63] DPA Code, paragraphs 7.11-7.21

[64] DPA Code, paragraph 7.2 & 7.8

[65] DPA Code, paragraph 7.9 iv

[66] Paragraph 8.3 of the DPA Code refers to compensation having priority over the financial penalty.

[67] See also the Code of Practice for Victims

[68] See s130 of the Powers of Criminal Courts Act 2000.

[69] Even if an individual victim cannot be identified, it may be possible in bribery cases to justify compensation on the basis that the citizens of a particular region or state have been affected by the wrongdoing.

 

[70] Crime and Courts Act 2013, Schedule 17, paragraph 5(3)(d)

[71] Crime and Courts Act 2013, Schedule 17, paragraph 5(4)

[72] Criminal Justice Act 2003, section 164 (3)

[73] The Sentencing Council Guideline, ‘Fraud, bribery and money laundering: corporate offenders’ “Step 3”

[74] The Sentencing Council Guideline ‘Fraud, bribery and money laundering: corporate offenders’ page 52 “Step 5”

[75] Consider also Sentencing Council Guidelines on Totality

[76] Crime and Courts Act 2013 Schedule 17 paragraph 7(4)

[77] DPA Code, paragraph 9.6

[78] Part 11.3 (2) (a) Criminal Procedure Rules 2015

[79] Part 11.3 (2) (b) Criminal Procedure Rules 2015

[80] Section 9.2 & 9.3 DPA Code of Conduct

[81] Part 11.3 (3) (a-i) Criminal Procedure Rules 2015

[82] Part 11.3 (4) (a) and (b) Criminal Procedure Rules 2015

[83] Crime and Courts Act 2013 Schedule 17 paragraph 7(1) (a) and (b)

[84] DPA Code of Practice, Section 9.4

[85] Crime and Courts Act 2013 Schedule 17 paragraph 8 (1) (a) and (b)

[86] Section 10.2, DPA Code  

[87] Part 11.4 (2) (b) (i) and (ii) Criminal Procedure Rules 2015

[88] Part 11.4 (3) (a-f) Criminal Procedure Rules 2015

[89]Parts 11.4 (4) (a) and (b) Criminal Procedure Rules 2015,

[90] DPA Code, paragraph 12.2

[91] DPA Code, paragraph 12.3

[92] DPA Code, paragraph 12.4

[93] DPA Code, paragraph 12.5

[94] DPA Code, paragraph 12.5

[95] DPA Code, paragraph 12.6

[96] Crime and Courts Act 2013 Schedule 17 paragraph 9 (5) and (7)

[97] DPA Code, paragraph 12.7

[98] DPA Code, paragraph 12.9

[99] DPA Code, paragraph 12.10

[100] DPA Code paragraph 13.2(ii) and Crime and Courts Act 2013 Schedule 17 paragraph 10(1)(b)

[101] DPA Code, paragraph 13.2(ii)

[102] Crime and Courts Act 2013 Schedule 17 paragraph 10(2)

[103] DPA Code, paragraph 13.3

[104] Crime and Courts Act 2013 Schedule 17 paragraph 10 (7) & (8)

[105] DPA Code, paragraph 13.4

[106] DPA Code paragraph 14.1 and Crime and Courts Act 2013 Schedule 17 paragraph 11(1)

[107] DPA Code, paragraph 14.2

[108] DPA Code, paragraph 14.3

[109] DPA Code, paragraph 14.4

[110] DPA Code paragraph 14.6 and Crime and Courts Act 2013 Schedule 17 paragraph 11(5)(b)

[111] DPA Code, paragraph 14.5

[112] Crime and Courts Act 2013 Schedule 17, paragraph 11(8)

[113] DPA Code, paragraph 14.7

Version OGW 1, Published October 2020 © Crown Copyright, 2020.

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