Deferred Prosecution Agreements

"One of the premier white collar defence teams in London"

Legal 500 UK 2020

Deferred Prosecution Agreements (DPAs) were introduced in the UK in 2014 to encourage self-reporting by corporates of criminal wrongdoing and are their numbers are steadily increasing.

Simply put, they allow a company facing prosecution to avoid a trial on condition that it complies with certain conditions. DPAs can be used for certain economic crimes including fraud and bribery. In October 2020 the SFO published a chapter from its handbook which offers comprehensive guidance on how it approaches DPAs, and how it engages with companies where a DPA is a prospective outcome.

No company wishes to be prosecuted, given the expense and reputational damage involved as well as the risk of being barred from tendering for public sector contracts if it is convicted.  However, only those companies that offer full co-operation with the authorities will be invited to enter into a DPA. These agreements are not a soft option, however, and the conditions of any DPA offered need to be considered very carefully.

Typically, such conditions will include payments (financial penalty, compensation, costs), continuing duties of co-operation and the satisfactory completion of a corporate reform programme – possibly involving a monitor. If, within the time period agreed, the company in question complies with those conditions then the prosecutor will discontinue criminal proceedings and the company will avoid the risk of a conviction. However, if it does not satisfy those conditions, then the prosecutor will reactivate proceedings and continue the prosecution of the company.

Only the Director of the Serious Fraud Office (SFO) or the Director of Public Prosecutions can authorise a DPA and, unlike in the US, a UK DPA is subject to significant judicial oversight. To have any legal effect a DPA must be approved by a judge as being in the interests of justice and having terms that are fair, reasonable and proportionate.

We have been involved in many of the cases in which DPAs have been entered into by corporates with the SFO, and so are well placed to advise on the merits or otherwise of such agreements and to guide companies through the process of negotiating one. 

How we can help

  • The starting point of any DPA-related discussion is to understand the nature of a company’s alleged wrongdoing and to assess the strength of any prosecution case against it, with a view, if necessary, to making representations to the SFO about the shape of the case.
  • If a corporate is at risk of prosecution, we can advise on the prospects of securing a DPA and whether that would be beneficial; if so, we can assist with the strategy of how to get there and can negotiate terms that are fair, reasonable and proportionate.
  • We ensure our advice is practical and tailored to the particular needs at that time of the company, including the risk of civil litigation and employment proceedings, corporate governance issues and the likelihood of regulatory scrutiny, as well as the reputational consequences and potential impact on stakeholders such as customers and investors.  
  • We can work on a stand-alone basis or alongside a company’s regular advisers where a corporate prefers for us to do so.  

Our approach

We understand the range of factors that need to be considered when entering into a DPA - legal, practical and financial - and the pressures on corporate management teams in weighing whether to go down the DPA route.

We marry this with our experience of how the SFO works and the law underpinning corporate criminal offences to help navigate a path which is in the best interests of the company.

If you have any questions about DPAs, please contact a member of our team.

What clients and directories have said

One of the premier white collar defence teams in London."

Legal 500 UK 2020

The criminal litigation department at Kingsley Napley LLP continues to ‘hold its own against the Magic Circle firms’."

Legal 500

Very good at litigation and have a fantastic reputation in the white-collar world."

Chambers High Net Worth Guide, 2019

The firm has very good criminal lawyers with strength and depth throughout the department."

Chambers and Partners, 2019

This top-tier UK-based firm stands out in the region for its distinguished white-collar crime practice."

Who's Who Legal: Business Crime Defence, 2018

I believe their strength lies in their meticulous attention to detail and the intelligence of the individuals employed by that firm. I could not imagine a better law firm."

Chambers and Partners, 2018

They guide you expertly through the criminal and regulatory landscape in a very effective, practical way."

Chambers and Partners, 2018

Kingsley Napley are collegiate and easy to work with. You know you could give work to any of the partners, it wouldn't matter because you know they would all give good advice." 

Chambers and Partners, 2018

 

The firm has some very experienced practitioners who will work as part of a team in the biggest cases.”

Legal 500 UK 2021

An excellent team of bright and dedicated lawyers."

Chambers UK 2021

There is huge collective experience within the team.”

Legal 500 UK 2021

They have a fantastic practice in this area."

Chambers UK 2021

Well-known name in the market, with deep expertise in all aspects of serious corporate crime including regulatory breaches and complex fraud. Adept at handling international corruption, fraudulent trading and false accounting matters. Well versed in bribery and money laundering investigations. Notable experience in advising on internal investigations and compliance, as well as in handling proceedings by government enforcement agencies."

Chambers UK 2020 – A Client’s Guide to the UK Legal Profession

Read Louise Hodges' and Caroline Day's Chapter 'Witness Interviews in Internal Investigations: The UK Perspective'  in GIR's Practitioner's Guide to Global Investigations, Fourth Edition

 

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