Pitfalls of US-Style Deferred Prosecution Agreements must be considered
Paul Lewis is a partner solicitor at David Phillips & Partners
The long awaited Deferred Prosecution Agreements (DPAs) expected to surface in the UK by 2014, will benefit all involved if executed right – but we should learn from the American experience and be mindful of the warning signs.
What is a DPA?
The entire concept behind DPAs stems from America. Under a DPA, a prosecutor can pardon the defendant, if the latter conforms to a set of certain terms. So, if you’re charged with serious fraud, you could effectively avoid court punishment, by agreeing to the prosecutor’s conditions.
Such conditions would be reasonably outlined between the parties, with legal representation present on both sides. A common resolution in fraud cases is for the defendant to repay owed monies over time, along with a fine. By carrying out the requests under the DPA, the defendant is relieved of any charges attached to that particular case.
If the Crown Prosecution and Serious Fraud Organisation determine the conditions of a DPA to be appropriate, the charge will be successfully deferred. If the terms of the DPA are not then met by the defendant, the charges will recommence.
Why are DPAs coming to the UK?
Serious fraud cases are complex to say the least. Currently, some cases can go on for over seven years, only to result in a guilty plea at the last minute – this reportedly costs the Serious Fraud Organisation more than £1.5million each time.
DPAs will streamline the entire process but their introduction is not a ‘silver bullet’ in any way – fitting this American legal model into the UK will be a delicate process.
Getting it right
DPAs will not only afford security to the victims of corporate corruption but will also protect the defending cooperative establishments who, currently, can jeopardise the position of their associates (employees/clients/executives), who have nothing to do with the actual crimes of the company.
For solicitors, DPAs will allow for a more efficient settlement procedure and clients will be put at ease early – instead of enduring years of legal proceedings.
It is very early days and when you consider how often economic crimes involve two or more parties from different countries, it is difficult to determine how DPAs will work on an international scale. It is critical the UK DPA model will be robust enough to instil a confidence into British corporations who have entered the plea, that they will remain exempt from fully fledged prosecution overseas.
About the Author
Paul Lewis is a partner solicitor at David Phillips & Partners and a Higher Courts Advocate who regularly conducts trials in the Crown Court and acted as both leading and junior counsel in cases of national prominence. Paul has directed many serious criminal cases, including murder, drugs, commercial & serious fraud and sexual offences.