Last week the SFO and CPS published their long awaited Deferred Prosecution Agreement (DPA) Code of Practice, following a consultation that took place last year. Both organisations have shown a commendable willingness to listen to representations that were made to them. While the substance of the code remains the same as in the earlier draft, there have been numerous changes to rectify practical problems or provide greater clarity.
Now this document is in place, there will inevitably be speculation about what type of case is likely to result in the first DPA. I offer the following thoughts:
The most likely candidate for the first DPA will be the type of case that would attract the lowest level of fine on a plea of guilty if proceedings were to take place.
Such cases, according to guidance published by the Sentencing Council at the end of January, are those where the corporate offender is likely to have played a minor role in the alleged criminality, has no previous history of similar conduct, has co-operated with the prosecution and where offending took place under previous management.
These factors are also identified in the Code as being ones which point against prosecution and in favour of a DPA.
That is not to say though that a DPA in a serious case is impossible. While a prosecution in such a case is more likely, the Code does still allow for a DPA particularly where the criminality is historic and the corporation has turned the situation around. Support for this is found in two places in particular in the Code: paragraph 2.6 states that it is quite possible that one public interest factor alone may outweigh a number of other factors which tend in the opposite direction; and paragraph 2.8.2 (i) attaches “considerable” weight to a genuinely proactive approach towards self-reporting.
However, I remain of the view that it is unlikely that the first DPA, or indeed the first few, will involve such conduct. Both the Director of the SFO and the DPP will wish to establish a body of precedent which endorses the main messages set out in the Code, and these definitely favour DPA’s for cases which fall at the bottom end of the scale. The Directors will also be wary of a rebuff from the judiciary when the first cases are brought before the courts for approval. The Directors are unlikely therefore to want to enter into any DPA where the court might be in doubt as to whether a DPA is appropriate.