Deferred Prosecution Agreements Globally

Deferred prosecution agreements (DPAs) are becoming an increasingly popular method of resolving corporate criminal cases globally. A deferred prosecution agreement is a legal arrangement between a prosecutor and a defendant whereby the prosecutor agrees to defer or postpone the prosecution of the defendant for a specified period of time, usually several years, while the defendant agrees to undertake certain conditions.

Deferred prosecution agreements are being used to try to reduce the burden on the criminal justice system, promote corporate compliance and encourage companies to self-report wrongdoing. The concept of deferred prosecution agreements originated in the United States, but they are now being used in countries such as the United Kingdom, France, and Canada.

In the UK, for example, DPAs were introduced in 2014 as part of the Crime and Courts Act. Since then, the Serious Fraud Office, which is responsible for prosecuting complex fraud and bribery cases, has entered into several DPAs with companies such as Rolls-Royce and Tesco. These agreements have saved the companies from being prosecuted, but have required them to pay substantial fines and agree to ongoing monitoring by the SFO.

Similarly, in France, the introduction of DPAs in 2016 has encouraged companies to report wrongdoing, with the French National Financial Prosecutor successfully concluding several DPAs with companies such as HSBC and Société Générale.

One of the key benefits of DPAs is that they can bring resolution to complex criminal cases more quickly and efficiently than traditional court proceedings. They can also provide some certainty to the company and its stakeholders, and they can help to preserve jobs and avoid the economic harm that can result from a company going out of business.

However, DPAs are not without their critics. Some argue that they can be seen as a “get out of jail free” card for companies that have engaged in serious wrongdoing, and that they may not provide the same level of accountability and deterrence as traditional court proceedings. Others argue that DPAs can be used by regulators to extract large fines from companies, which may be disproportionate to the wrongdoing that has been committed.

Overall, DPAs are likely to remain a key tool for prosecutors globally when dealing with complex corporate crime cases. As such, companies need to be aware of the potential risks and benefits associated with DPAs, and ensure that they have robust policies and procedures in place to prevent, detect and address wrongdoing.