The content of a DPA are set down in statute. The contents must include:
- A statement of facts relating to the alleged offence which may include admissions that have been made;
- An expiry date;
- the date on which the DPA ceases to have effect if not previously terminated because of breach;
- Impose on the person at least the following requirements, namely:
- To pay to the prosecutor a financial penalty;
- To compensate victims of the alleged offence;
- To donate money to a charity or other third party;
- To disgorge any profits made from the alleged offence;
- To implement a compliance program or make changes to an existing compliance program relating to the person’s policies or to the training of employees, or both;
- To cooperate in any investigation related to the alleged offence;
- To pay any reasonable costs of the prosecutor in relation to the alleged offence or the DPA;
- The DPA may also contain time limits within which the requirements must be complied with.
Advice given includes that the amount of any financial penalty that is agreed between the parties should broadly be comparable to any fine that a court would have imposed on conviction for the alleged offence following a guilty plea.
It is also possible for the DPA to include a term that sets out the consequences of any failure to comply with any of the terms.
The DPP and the Director of the SFO were jointly charged with issueing a code for prosecutors giving guidance on the approach to investigating and prosecuting DPAs.
It should be noted that any money received by a prosecutor under the terms of a DPA are paid to the Consolidated Fund. A share of the money is expected to go to the SFO not only to cover the cost of these proceedings but to benefit the SFO’s budget.
The Act sets out what has to be contained within a DPA. You will see that there is wide scope for discussion in respect of the terms.
Early expert legal advice is essential.
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.