Rahman Ravelli’s Joshua Ray and Josie Welland outline the differences between DPAs in the two countries.
Deferred prosecution agreements (DPAs) originated in the US and are in such common use there that they are a routine part of white-collar crime enforcement. Other countries have since followed suit, most notably the UK.
On February 24, 2014, DPAs became available to prosecutors in the UK for the first time, under the provisions of Schedule 17 of the Crime and Courts Act 2013; which was given Royal Assent on 25 April 2013. The introduction of DPAs into the UK signified a change in the approach to corporate criminal liability; bringing it closer to that taken by the US. But while UK DPAs have a lot of similarities to their US counterpart, there are differences in law and the way they are utilised by enforcement agencies.
Scope and application
In both the US and UK, DPAs apply to organisations. But in the US they can also be used regarding individuals. This is not the case in the UK, although the terms of a DPA concluded with a company can have an effect on an individual’s criminal (or civil) liability.
The UK also differs from the US regarding the bodies that are able to enter into a DPA with a company that may otherwise have been prosecuted. Under Schedule 17, Part 1 of the Crime and Courts Act, only “designated prosecutors’’ can enter a DPA. Designated prosecutors include the Serious Fraud Office (SFO) and the Director of Public Prosecutions (in England and Wales).
In the US, however, federal, state, and county prosecutors and those in other positions with the authority to enforce federal and state regulations have the power to enter into a DPA. This may partly explain why 2019 alone saw 17 corporate DPAs concluded in the US – eight more than have ever been reached in the UK since Schedule 17 came into effect.
The sheer size of the US compared to the UK may also be a factor in its greater use of DPAs. But another reason for the disparity between the numbers of DPAs in the UK and US may well be differences in the legal framework.
The concept of respondeat superior – meaning an employer is responsible for the acts of its employees and agents - makes corporate criminal liability a realistic prospect in the US when employees of a corporation are involved in criminal activities. This makes the prospect of prosecution relatively straightforward, which may then lead to a matter being resolved by a DPA. In the UK, however, the absence of this concept means that the so-called identification principle is used to determine whether the offender was a “directing mind and will” of the company. This has proved an obstacle in the UK to establishing corporate liability. The greater the difficulty in establishing corporate liability, the less likelihood of a prosecution which, in turn, means less chance of a DPA being concluded. At present, the only strict liability corporate criminal offences the UK has are failure to prevent bribery, under Section 7 of the Bribery Act 2010, and the two offences of failure to prevent tax evasion contained in the Criminal Finances Act 2017.
In the US, DPAs are negotiated by prosecutors with little judicial involvement. Generally, the US judiciary approves the terms without significant amendment before they are made public. Whereas in the UK, judicial approval is required to initiate negotiations, enter into a DPA and modify its terms.
There have been criticisms that the lesser judicial role in DPAs in the US means that too much power in the process is in the hands of prosecutors. The UK prosecutor, however, must obtain Crown Court approval (usually from a High Court judge) for a DPA on two occasions. The prosecutor has to satisfy the court in a preliminary hearing that the DPA that is proposed is both fair, reasonable and proportionate and in the interests of justice. After the terms of the DPA have been agreed, the prosecutor will then attend a final hearing; during which the court will again examine whether the terms of the DPA are in the interests of justice and are fair, reasonable, and proportionate. If they are, the DPA will be approved. The court can reject the DPA at either of these stages – an indicator of just how more important judicial involvement in the DPA process is regarded in the UK rather than in the US.
Offences covered by DPAs
In the UK, DPAs can only apply to offences of fraud, bribery and other economic crime. In the US, however, DPAs can be used for a wider range of wrongdoing, although they are most commonly used for bribery and corruption, environmental and health and safety offences. The US authorities have a wider discretion when it comes to their use, although there are restrictions on cases involving national security, foreign affairs and the conduct of government officials.
Looking for more information?Read about Deferred Prosecution Agreements (DPA).