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DPAs: LESS THAN FULL CO-OPERATION?

dpasOur portal editor, Jonathan Fisher QC, explores the requirement for prosecutors to take into account the cooperation of the company when deciding whether a DPA would be in the public interest.

SPEED READ

The Deferred Prosecution Agreement (DPA) Code of Practice requires the level of a company’s co-operation to be considered amongst a number of other factors when determining whether a DPA would be in the public interest.  This raises questions as to whether public confidence can be maintained in a system that could see DPAs offered to partially co-operative companies.

COMMENTARY

The Deferred Prosecution Agreement Code of Practice (“the Code”) has recently been issued by the Director of Public Prosecutions and Director of the Serious Fraud Office (SFO) pursuant to paragraph 6(1) of Schedule 17 to the Crime and Courts Act 2013. The Code outlines the factors that a prosecutor must take into account when deciding whether to enter into a Deferred Prosecution Agreement (DPA). This is a new weapon in the SFO’s armoury which involves the making of an agreement between a prosecutor and a company whereby, in return for complying with a range of conditions the prosecutor will defer a criminal prosecution.

Offering an invitation to enter into DPA negotiations is a matter purely at a prosecutor’s discretion. In order to enter into DPA negotiations, a prosecutor must satisfy a three stage test. First, the evidential stage of the Full Code Test in the Code of Crown Prosecutors is met, or there is reasonable suspicion based on admissible evidence that a company has committed a criminal offence. Secondly, the full extent of the alleged offending conduct must be identified. Thirdly, the public interest must likely be served by entering into a DPA.

The Code outlines a number of factors for a prosecutor to take into account when considering whether a DPA would be in the public interest. For example, considerations weighing in favour of prosecution include whether there is a history of similar conduct, whether alleged conduct is part of established business practices within the company, whether there have been the previous warnings, and whether there has been direct harm to victims. Public interest factors militating against prosecution include lack of co-operation, lack of a history of similar conduct, the existence of a proactive compliance programme, and whether a conviction would have collateral effect on the public. The Code expressly states that “a prosecution will usually take place unless there are public interest factors against prosecution which clearly outweigh those tending in favour of prosecution.”

Focusing on the consideration of a company’s co-operation, the Code states as follows: “Considerable weight may be given to a genuinely proactive approach adopted by P’s [the company’s] management team when the offending is brought to their notice, involving within a reasonable time of the offending coming to light reporting P’s offending otherwise unknown to the prosecutor and taking remedial actions including, where appropriate, compensating victims.”

In considering the level of co-operation by the company, a prosecutor is required to establish whether sufficient information about the operation and conduct of the company has been supplied in order to properly assess the level of cooperation. “Co-operation” is deemed to include indentifying witness, disclosing potential witness’s accounts, making witness available for interview and providing a report of any internal investigation, including relevant documents.

What is interesting is that the Code does not make co-operation by a company a condition precedent to entering into DPA negotiations. Since co-operation is merely one of a number of factors to be taken into account by a prosecutor and not a determining factor, this posits the surprising outcome that circumstances could arise in which a DPA is offered to a company which has been less than forthcoming in terms of its level of co-operation. In this event, a question would arise as to whether public confidence can be maintained in a system which offers a DPA to a company which has been less than co-operative.

One might have thought that the preferred approach would be for the Code to make clear that full cooperation by a company would be regarded as a condition precedent which needed to be satisfied before a prosecutor would engage in DPA negotiations. It is only after such co-operation is shown that a prosecutor should begin to consider other factors relevant to the public interest.

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The views expressed in this article represent those of the author and not Bright Line Law.

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