Introduction of deferred prosecution agreements in the United Kingdom in 2014 ; regulatory background and timeline; features of the DPAs ; differences with US DPAs.

1. Deferred Prosecution Agreements
now introduced in the
United Kingdom
By Iohann Le Frapper,
Chief Legal Officer for Gulf Bridge International
Vice-Chair, and Vice-Chair of the ICC Commission on
Corporate Responsibility and Anti-corruption
On April 2, 2014

2. Timeline of key milestones:
 Bribery Act 2010
 Crime and Courts Act 2013 (Section 45) introduced the concept of DPAs ;
 14 February 2014 :DPAs Code of Practice issued by the Crown
Prosecutions Services (“CPS”) and the SFO ;
 24 February 2014: DPAs came into force as a tool available for public
prosecutors and the Serious Fraud Office (“SFO”) and an option for
companies to consider. Prosecution will remain the main route
 1 October 2014 : Definitive Guidelines issued by the Sentencing Council will
be applicable to all organisations sentenced on OR after that date, on the
ground of fraud, bribery and money-laundering (regardless of the date of the
offence).
- 10 steps to be followed
- Offence category to be determined by culpability and harm

3. What is a DPA ?
 Voluntary agreement among the prosecutor and a corporate person
 Criminal charges are brought but are suspended subject to satisfying
several compliance conditions (e.g. penalties, cooperation, remedial action,
monitor)
 SFO Director emphasized 2 most important features of DPA :
i. Judicial oversight (to answer with court disapproval of cross-
jurisdictional settlement agreements) , and
ii. Unequivocal cooperation (i.e. timely self-reporting, proactive
compliance program, disclosure of full and frank internal investigation
findings, disciplinary actions will be expected)

4. Two stage-test for entering into DPA:
i. evidential stage :
– DPA may be offered if evidential test is met (reasonable suspicion of
committed corporate offence ; realistic prospect of conviction).
– If not, civil recovery action is a potential route for prosecutor (to recover
the proceeds of “unlawful conduct”)
ii. public interest stage:
– Early involvement of a judge in a private hearing to rule whether the
proposed DPA : is “in the interests of justice”, and the proposed terms
and statement of facts are “fair, reasonable and proportionate”.
 Issue : will courts approve DPAs without admission of guilt by
companies ?

5. Key differences with US DPAs:
 Allowed for corporate offenders, so commercial organizations only ( not
individuals) # US: both individuals and organizations
 Settlement of specific offences only(that is fraud, bribery,
money-laundering) # US: broad range of criminal activities
 Authority to enter into DPAs reserved to heads of CPS and SFO # US
 Transparency of process: final court hearing as a public event # US
 Key review, approval and oversight role of the judiciary (approval,
breach or variation) # discretion of US DoJ

6. Thank you