On 17 May 2012 the Ministry of Justice ("MoJ") launched a consultation on plans to introduce a new means of resolving criminal cases in England and Wales: the Deferred Prosecution Agreement.

Deferred Prosecution Agreements (DPAs), together with Non-Prosecution Agreements (NPAs), have been used in the United States for years as a way of resolving criminal cases. They allow corporates to reach an agreed outcome with the authorities as a result of wrongdoing, which either the corporate has discovered itself and reported to the authorities or which the authorities have become aware of and are investigating.  Depending on the nature and seriousness of the offences involved and also depending on the level of cooperation by the corporate, the authorities may agree not to prosecute the offences if the corporate accepts certain penalties and conditions.  Such agreements are made with very limited judicial involvement (or no involvement at all in the case of NPAs). 

The MoJ's proposal for the introduction of DPAs in England & Wales, which initially will only be available for corporate offenders, is based on the US model, but seeks to incorporate a far greater level of judicial involvement and oversight in the process, ultimately requiring judicial blessing before a DPA can be agreed. NPAs are not proposed for England and Wales.  

DPAs are intended to provide a tool to prosecutors that will encourage corporates to cooperate, by giving them meaningful credit for voluntarily disclosing their conduct and cooperating with the authorities.  This should allow for swifter and more effective outcomes and for more corporate offending to be brought to light and dealt with at less cost and with the use of fewer resources than would be required if traditional routes were followed.

Under a DPA, a prosecution will be "suspended" on condition that the corporate complies with various requirements which can range from any or all of: financial penalties; compensation for victims; disgorgement of the profits of wrongdoing; and measures to prevent future reoffending or to "rehabilitate" the company by imposing reporting requirements, governance improvements or an independent monitor for an agreed period of time. The terms of the DPA would be publicly available once approved in open court. Should the conditions not be observed within the life of the DPA (likely one to three years), the prosecutor can then resuscitate proceedings.

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