If a Prosecutor believes that the terms of a DPA have not been complied with then application should be made to the Crown Court. The court then has to make a decision whether there has been a failure to comply. This decision is taken on the balance of probabilities. If the court finds there has been non-compliance then either the parties could be invited to agree proposals to remedy the failure, or the DPA may be terminated. Reasons must be given.
It is possible that the prosecutor, albeit believing that the DPA has not been complied with, may decide not to make application to the Crown Court. If the prosecutor makes that decision then the prosecutor must publish the decision together with the reasons for believing that there is non-compliance, and the reasons for not making the application to the court.
Simply because a DPA has been entered into does not mean that it cannot be varied. There are circumstances that mean the parties may agree variations. This could be necessary either because the court has invited it, or because there were some unforeseen factors at the time the DPA was agreed. Any agreement needs to go back to the court for approval.
Once the period of the DPA has expired the prosecutor should discontinue the proceedings in the Crown Court. At this time the person who was subject to the DPA is protected from any other action for the same offence unless it is shown that the person provided inaccurate, misleading or incomplete information to the prosecutor, and the person knew or ought to have known the information was inaccurate, misleading or incomplete.
Early expert legal advice is essential whenever there is the prospect of a breach of a DPA.
Contact Dennis Clarke to discuss your needs and agree a fee structure to help to resolve this. At the same time why not have a policy to deal with other eventualities that are usually ignored but which will be expensive if no plan is in place. See our business sectionfor more.