What is a Deferred Prosecution Agreement?

You may have seen in recent news that St Pauls Barrister, John Harrison KC, was part of a team who made legal history by securing an unprecedented bribery acquittal for Sarclad following a DPA. But what is a Deferred Prosecution Agreement? In this article, we answer some FAQs regarding deferred prosecution agreements.

What does the Deferred Prosecution Agreement mean in Court?

In the instance of fraud or a financial crime case, a Deferred Prosecution Agreement (DPA) refers to a judge-supervised agreement between the prosecutor and defendant whereby prosecution is conditionally suspended while the defendant fulfils the requirements of the agreement in a set period of time.

What are the Terms of a Deferred Prosecution Agreement?

The terms of a Deferred Prosecution Agreement usually follow the lines of:

• Full cooperation with investigations
• Paying a financial penalty
• Paying compensation
• Cooperating with future, relevant prosecutions
• Repairing the damages done. E.g. firing those responsible, and putting additional parameters in place to prevent the crime from happening again

The agreed terms must be met in the agreed time period for the prosecution to be deferred.

Why Was the DPA Introduced?

 The DPA was introduced in 2012 with the goal of giving prosecutors the resources they need to deal with a complex issue which might otherwise prove difficult to address.

Justice Minister Damian Green stated that DPAs ‘will ensure that more unacceptable corporate behaviour is dealt with including through substantial penalties, proper reparation to victims, and measures to prevent future wrongdoing.’

What are the Benefits of a Corporation Entering into a Deferred Prosecution Agreement?

• They help avoid long and expensive trials.
• They are transparent, public events
• Protects innocent employees and investors. This is done by giving corporations the chance to make things right without sanctions or reputational damage that could take down the company and destroy the jobs of innocent people.
• DPAs are under the supervision of a judge, who must be certain that the DPA is in the best interest of the public and that the terms are fair, reasonable and proportionate.

Public Interest Factors for DPAs

When the judge is considering whether a DPA, rather than a prosecution, is in the public’s best interests, the prosecutor must comply with the public interest factors stated in the Code for Crown Prosecutors. Here are some factors that need to be taken into consideration:

• Whether there a significant level of harm caused to the victims
• Did the organisation fail to notify what had happened within a reasonable time of the unlawful conduct coming to light
• The company has a history of similar misconduct
• The company had previously been warned but nevertheless continued or failed to take action to avoid future unlawful conduct

Who Can Enter a Deferred Prosecution Agreement?

DPAs only apply to organisations and aren’t granted to individuals – typically, they are used in the instance of fraud, bribery or other economic crimes.

How is a DPA Agreed?

Before the defendant is invited to enter DPA negotiations, they must have first demonstrated full cooperation with case investigations. If the defendant complies with the investigations, negotiations may begin. An independent judge oversees Deferred Prosecution Agreements which are agreed in open court. The outcome is published to ensure transparency of the process and prosecution is suspended until the end of the agreed period when it is decided if the prosecuted organisation has met the agreed conditions.

Is a Deferred Prosecution Agreement an admission of guilt?

Provided the organisation meets the conditions of the DPA during the agreed period and is not convicted or charged of any other crimes in this time, charges are dismissed. Therefore, no admission of guilt is required. It is important to note that a Deferred Prosecution Agreement is different from a Deferred Judgment where the defendant must plead guilty.

What Happens if you break a Deferred Prosecution Agreement?

If the organisation doesn’t meet the agreed conditions of the DPA, the prosecutor should write to the company and ask for the breach to be amended immediately. If the company complies and resolves the situation immediately, the breach does not need to be taken to court.

However, if the company fails to rectify their actions, the prosecutor can apply to the court and the prosecution process would be reinstated if the breach is significant. The court can then terminate the DPA, where the company would not be entitled to the return of any money paid under the DPA before the termination to comply with the agreements made (e.g. a monitoring programme).

Is Deferred Adjudication the same as Deferred Prosecution?

Although both terms refer to the nature of a criminal case, deferred adjudication is a type of probation and deferred prosecution is a dismissal of the charges.

Probation is a final conviction that will remain on the individual’s criminal record. The individual is found guilty by the judge and is placed on community supervision once released from prison.

With regards to a deferred prosecution, the defendant must plead guilty and promise to stay out of trouble and meet the specific agreements made in court. If the defendant successfully meets all of the agreements, the case is not re-filed and taken to court.

How can St Pauls Chambers help?

If you would like to speak to a fraud barrister regarding DPAs or have questions regarding a fraud case, please contact our team of experienced and knowledgeable fraud lawyers today.