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