Deferred prosecution agreements – a new UK tool

by DLA Piper

In the UK, significant changes are imminent as the much anticipated Deferred Prosecution Agreement (DPA) takes a step closer to implementation with the release of a Draft Code of Practice. DPAs offer a radical departure from the UK’s traditional approach to corporate criminality and, in conjunction with the Bribery Act, represent a significant change in the UK’s regulatory landscape. 

DPAs were introduced to UK jurisprudence to bring UK law more in alignment with US law and to assist in multi-jurisdictional cases involving economic crime - money laundering, fraud, bribery.  We expect that DPAs will useful tools for prosecutors seeking to enforce the UK Bribery Act. DPAs are likely to take effect from February 2014 and will be available to “designated prosecutors” in the UK –  currently the Serious Fraud Office and Director of Public Prosecutions.  

DPAs were developed in response to the heavily criticised "civil settlements" in earlier high-profile cases and are structured to receive far more judicial attention prior to approval.

What is a DPA?

A DPA is a court-approved agreement between a prosecutor and a company to suspend criminal proceedings. In exchange the company must agree to conditions including:

  • payment of a financial penalty 
  • compensation or
  • cooperation with any future prosecution of individuals.

Any breach can lead to the resumption of prosecution.

Key points

  • DPAs may be entered into with corporates, partnerships and unincorporated associations, but not individuals.
  • While DPA negotiations are ongoing and once a DPA is in place, no proceedings may be brought against the company regarding the alleged offence, unless it can be shown that inaccurate, misleading or incomplete information has been provided.
  • The Director of Public Prosecutions, Director of the Serious Fraud Office or any other prosecutor identified by an order of the Secretary of State may exercise the power to enter into a DPA.
  • Possible sanctions include the payment of financial penalties, a disgorging of profits, payment of compensation to victims and costs to prosecutors, charitable donations, and implementation of compliance programmes, as well as a requirement to cooperate in any investigation.

What does the Draft Code say?

The Draft Code expands upon the framework provided by statute, offering further detail on some areas listed above as well as issues not dealt with by the legislation. While written to assist prosecutors, the Draft Code offers guidance to all those seeking to understand how DPAs will be implemented.

When should a DPA be used?

No defendant has a right to be invited to enter a DPA; it is a matter for the prosecution's discretion. Accordingly, the Draft Code provides a two-stage test to determine whether a DPA would be appropriate:

1.         Is the Full Code Test  in the Code for Crown Prosecutors met that is, is there sufficient evidence to provide a realistic prospect of conviction? or is there reasonable suspicion that the company has broken the law and that continued investigation would provide further evidence within a reasonable time period, so that all the evidence together would be sufficient for conviction in accordance with the Full Code Test?

2.         Would be the public interest be properly served if the prosecutor were to enter into a DPA with the company?

The Draft Code lists factors which a prosecutor may take into account when considering whether a DPA is in the public interest.  As a general rule, the more serious the breach, the less appropriate the use of a DPA. Particular reference is drawn to the OECD Convention on Combatting Bribery and its requirement for the prosecution of  bribery of a foreign official not to be influenced by:

  • Considerations of national economic interest
  • The potential effect upon relations with another state or
  • The identity of the natural or legal persons involved.

Factors supporting prosecution include:

  • A history of similar conduct
  • Repeated flagrant breaches, particularly when there have been warnings or sanctions
  • Conduct which is part of the established business practice of the company
  • Late or inaccurate reporting
  • Victims having suffered severe economic harm

Factors weighing against a prosecution include:

  • Robust compliance programmes
  • Implementation of effective self-reporting
  • Proactive measures to remedy problems and compensate victims
  • Prompt and full reporting
  • No previous regulatory action
  • Breach committed due to the actions of a rogue employee


The Draft Code devotes several paragraphs to the issue of self-reporting. The emphasis is on speed and quality. DPAs are a much-needed statutory measure to offer companies faith that "doing the right thing" will be to their benefit and achieve a better outcome than going through a full-blown prosecution.

The Draft Code offers companies some degree of comfort in the face of the extremely high levels of compliance required by the UK Bribery Act.   A company that implements strong compliance procedures, even if they have fallen short in a particular instance or difficult jurisdiction, should at least receive the opportunity to benefit from a DPA.


The publication of the Draft Code shines a strong light on the way in which DPAs are likely to operate.  However, many questions still remain. While some of these questions will be directly addressed through the ongoing consultation process, others may only be settled by observing how prosecutors, courts and companies approach these revolutionary agreements.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© DLA Piper | Attorney Advertising

Written by:

DLA Piper

DLA Piper on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.