1. Key features of DPAs
DPAs have the following key features:
- They are entered into between a prosecutor and a company in relation to specific types of offence.
- The company admits criminal wrongdoing and agrees to make full reparation for its historic conduct.
- In return, the prosecutor agrees that criminal charges will be stayed and, when the terms of the DPA have been satisfied, discontinued.
- The DPA must be approved by a Judge. Approval will be withheld if the terms of the DPA are not "fair, just and proportionate"
We address these features below
Companies and specific offences only
Only companies, partnerships and unincorporated associations can enter into DPAs: para 4(1) of Schedule 17 to the Crime and Courts Act 2013 (Schedule 17). Similarly, only the DPP, the Director of the SFO and other specially designated prosecutors can enter into DPAs with such companies: para 3(1) of Schedule 17.
The list of "Offences in relation to which a DPA may be entered into" is found at Part 2 of Schedule 17.
In summary, the applicable offences are: (1) common law offences of conspiracy to defraud and cheating the public revenue, (2) certain specified offences under the Theft Act 1968, the Customs and Excise Management Act 1979, the Forgery and Counterfeiting Act 1981, the Companies Acts 1985 and 2006, the Value Added Tax Act 1994, the Financial Services and Markets Act 2000, the Proceeds of Crime Act 2002, the Fraud Act 2006 and the Bribery Act 2010, (3) one offence under the Money Laundering Regulations 2007, and (4) ancillary offences (eg aiding and abetting any of the above).
Content of a DPA
There are only a few statutory rules on the content of DPAs, namely (i) that they contain a statement of facts relating to the alleged offence (which may, but does not need to, contain an admission by the company), (ii) that the DPA has an expiry date (when it ceases to have effect if not previously terminated for breach), and (iii) that it explains what the company has agreed to do: para 5 of Schedule 17.
DPAs can include a wide variety of financial obligations, including to pay the prosecutor a penalty, to compensate victims, to donate money to charity, and to pay the prosecutor's costs. The only (fairly strict) requirement is this:
"The amount of any financial penalty agreed between the Prosecutor and [the company] must be broadly comparable to the fine that a court would have imposed on [the company] on conviction for the alleged offence following a guilty plea." (para 5(4) of Schedule 17)
The Prosecutor's side of the bargain
In return, Schedule 17 (paras 2(1)-(2) and 11(1)) explains that the Prosecutor must, upon approval of the DPA:
- Institute a prosecution in relation to the relevant offence, which prosecution will be automatically suspended; and
- Discontinue the prosecution once the terms of the DPA have been complied with/
Para 11(2) of Schedule 17 explains that no new proceedings may be brought against the company for the same offence. But para 11(3) provides that this restriction does not apply if the company has knowingly given the prosecutor inaccurate, misleading or incomplete information in the negotiation process.
There is a two-stage process for the approval of a DPA by the Court.
First, an application is made in private BEFORE the DPA is signed off for declaration that (a) entering into the DPA is likely to be in the interests of justice and (b) the proposed terms of the DPA are fair, reasonable and proportionate: para 7(1) of Schedule 17. The Court must give reasons.
Secondly, a second application is made AFTER the terms of the DPA have been signed off between the prosecutor and the company. This application may be made in private. At this hearing, the Court is asked to declare that (a) the DPA is in the interests of justice and (b) that its terms are fair, reasonable and proportionate. Again, the Court must give reasons. See para 8 of Schedule 17.
It is only after both sets of declarations are granted that the DPA becomes binding: para 8(3) of Schedule 17.
Finally, the prosecutor must publish the DPA itself and the declarations granted by the Court and the reasons given: para 8(7) of Schedule 17.