Apr 10, 2018 - A DPA is an agreement entered into between the. Public Prosecutor and a subject which has been charged wi
LEGISLATION UPDATE 10 April 2018
THE REGIME FOR DEFERRED PROSECUTION AGREEMENTS SUMMARY On 19 March 2018, the Criminal Justice Reform Bill (“Bill”) was passed by Parliament. One of the major changes is the introduction of a regime for Deferred Prosecution Agreements (“DPA”). Instead of being mired in lengthy litigation when employees go astray, businesses now have the chance to focus on issues that are important to the longevity of their business, ie identifying the root causes of their employees’ misfeasance and taking steps to achieve corporate rehabilitation. This update highlights the features of the DPA regime.
WHAT IS A DEFERRED PROSECUTION AGREEMENT (DPA)?
Each DPA will set out specific obligations that the subject must abide by. Such obligations may include: (a) paying the Public Prosecutor a financial penalty; (b) compensating victims of the alleged offence; (c) donating money to a charity or any other third party; (d) disgorging profits made by the subject from the alleged offence; (e) implementing a compliance programme, or make changes to an existing compliance programme; (f) appointing a person to assess and monitor the subject’s internal controls and/or the subject’s compliance programme; (g) cooperating in any investigation relating to the alleged and/or potential offence; and (h) paying any reasonable costs of the Public Prosecutor in relation to the alleged offence or the DPA. The DPA may impose time limits within which the subject must comply with the obligations therein. There may also be a term setting out the consequences of failure to comply with the obligations in the DPA.
A DPA is an agreement entered into between the Public Prosecutor and a subject which has been charged with a criminal offence, or which the Public Prosecutor is considering prosecuting for a criminal offence. In this regard, a subject may be a body corporate, a limited liability partnership, a partnership or an unincorporated association. However, a subject cannot be an individual.
ENTERING INTO A DPA
A DPA must contain a charge (or draft charge) relating to the alleged offence. The DPA must also contain a statement of facts relating to the alleged offence (which may include admissions made by the subject) and must specify an “expiry date” on which the DPA ceases to have effect (unless it is terminated earlier).
If the High Court does not approve the DPA, the Public Prosecutor and the subject may revise the terms in the DPA so as to address the High Court’s concerns. The Public Prosecutor may then make another application to the High Court for approval.
The Public Prosecutor and the subject must agree on the terms of the DPA. The DPA must then be approved by the High Court. If the High Court is convinced that the DPA is in the interests of justice and that its terms are fair, reasonable and proportionate, the DPA will be approved.
EFFECT OF A DPA Once a DPA is approved by the High Court, the DPA comes into force. The effect of the DPA is threefold: (a) If the subject has already been charged with the alleged offence, the subject will be deemed to have been granted a discharge not amounting to an acquittal in relation to the alleged offence; (b) While the DPA is in force, the subject cannot be prosecuted for the alleged offence in any criminal proceedings; and (c) While the DPA is in force, any limitation period or time period for the commencement of the following matters is suspended: (i) The prosecution of the alleged offence; (ii) Any civil penalty action in respect of the alleged offence; (iii) Any proceeds for an order of disgorgement of a benefit derived from the alleged; (iv) Any proceedings for the confiscation of any property that is used or intended to be used for the commission of the alleged offence, or constitutes a benefit derived from the alleged offence; and (v) Any disciplinary or regulatory proceedings.
CONSEQUENCES OF BREACH OF A DPA If the Public Prosecutor believes that the subject has failed to comply with the terms of the DPA, the Public Prosecutor may apply to the High Court to ask the Court to decide whether the DPA has indeed been breached. If the Public Prosecutor succeeds in proving to the Court that, on a balance of probabilities, the subject has failed to comply with the terms of the DPA, the High Court must terminate the DPA. The subject may thereafter be prosecuted for the offence to which the DPA relates. Further, the
subject will be disentitled from recovering any money that it might have paid pursuant to any requirement imposed by the DPA before the termination. The subject will also be disentitled from any relief for any detriment caused to the subject by virtue of the subject’s compliance with the terms of the DPA before the termination.
VARIATION OF TERMS OF A DPA The terms of the DPA are not immutable. At any time when a DPA is in force, the Public Prosecutor and the subject may agree to vary its terms. When such agreement is reached, the Public Prosecutor must apply to the High Court for a declaration that the variation is in the interests of justice and that the new terms are fair, reasonable and proportionate. Only when such declarations are made by the High Court do the variations take effect.
EXPIRY OF A DPA A DPA will remain in force until its expiry date. Once the DPA has expired, the Public Prosecutor must typically do two things. He must: (a) give written notice to the High Court that it does not intend to prosecute the subject for the alleged offence; and (b) give public notice that it has given the written notice described in (a). Thereafter, the Public Prosecutor may apply to the High Court to grant the subject a discharge amounting to an acquittal in relation to the alleged offence. When such a discharge is granted by the High Court, the subject can no longer be charged for the alleged offence. If the Public Prosecutor finds that the subject knowingly provided inaccurate, misleading or incomplete information during the negotiations for the DPA, the Public Prosecutor may initiate fresh criminal proceedings against the subject.
PUBLICATION OF INFORMATION The Public Prosecutor must publish information relating to the coming into force, breach, termination, variation and expiry of a DPA. 2
However, such public notice may be postponed by the High Court if it appears to the High Court that the postponement is necessary to avoid a substantial risk of prejudice to the administration of justice in any legal proceedings or any criminal investigation. Further, the High Court may, if it is satisfied that it is expedient in the interests of justice, public safety, public security or propriety, make the following orders: (a) an order that any information, which is contained in any court document intended to be produced before the court, be removed or be sufficiently redacted; and/or (b) an order that no person is to publish any such information, or do any other act that is likely to lead to the publication of any such information. Where any of these orders are made by the High Court, any person who contravenes such orders shall be guilty of an offence and be liable on conviction to a fine or to an imprisonment term.
USE OF MATERIAL IN CRIMINAL PROCEEDINGS Material relating to the DPA may be used in criminal proceedings if the DPA ceases to have effect and the Public Prosecutor decides to pursue the criminal charges to which the DPA (or potential DPA) relates.
(b) on a prosecution for some other offence where the subject adduces evidence or asks questions about the material, and the subject thereafter makes a statement that is inconsistent with the aforesaid material. Any other material that the Public Prosecutor obtains in the course of negotiations for a DPA may, subject to the rules of evidence, be admissible as evidence against the subject or any other person in any criminal proceedings relating to any offence.
APPEALS The DPA regime also contains an appeal mechanism summarised in the following table: Decision by High Court Decision that a DPA should not be approved Decision that subject has failed to comply with the terms of the DPA Decision that the subject has not failed to comply with the terms of the DPA Decision that the terms of the DPA should not be varied
Subject
Public Prosecutor
May not appeal
May appeal
May appeal
May appeal
May appeal
May appeal
May not appeal
May appeal
COMMENTS Where the DPA has been approved by the High Court, the statement of facts contained in the DPA will be treated as an admission by the subject. The subject cannot recant this admission by withdrawing the statement of facts. Where the DPA has not yet been approved by the High Court, a draft DPA, a draft statement of facts or a statement indicating that the subject and the Public Prosecutor were negotiating a DPA may be used by the Public Prosecutor in these situations: (a) where the subject is prosecuted for an offence consisting of the provision of inaccurate, misleading or incomplete information; or
The DPA regime is a significant development in the law of corporate crime. To demonstrate compliance, corporate remorse and the desire for corporate rehabilitation, businesses must scrutinise their internal processes and ask difficult questions about what internal controls or mechanisms they can institute. However, this does not mean that the DPA regime is unduly burdensome. To the contrary, DPAs can spare businesses from long-drawn criminal investigations, court proceedings and the negativity associated with protracted proceedings. DPAs also provide businesses with an opportunity to focus on issues that are truly important to their long-term survivability, such as identifying the root causes of their employees’ misfeasance and 3
taking concrete steps to rehabilitate the business. DPAs allow a business to start afresh. The DPA regime presents businesses with a timely opportunity to cultivate the right corporate culture when criminal misconduct is uncovered in the company. Businesses can now work with the Public Prosecutor to negotiate the terms of the DPA that are palatable to them towards a joint, just and acceptable outcome while ensuring corporate accountability and taking a strong position in relation to individuals who may be liable for criminal prosecutions.
If you have any questions or comments on this article, please contact:
Wendell Wong Director, Dispute Resolution T : +65 6531 2496 E:
[email protected]
This update is prepared with the assistance of Andrew Chua Ruiming, a trainee with Drew & Napier LLC. ________________________________________ The content of this article does not constitute legal advice and should not be relied on as such. Specific advice should be sought about your specific circumstances. Copyright in this publication is owned by Drew & Napier LLC. This publication may not be reproduced or transmitted in any form or by any means, in whole or in part, without prior written approval.
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