Before the terms of a DPA can be agreed, the prosecutor must apply to the Crown Court for a declaration that the agreement is likely to be in the interests of justice and the terms are fair, reasonable and proportionate.
This is not just a box ticking process, as the court has to give reasons for its decision – whatever the decision may be. An adverse decision by the judge does not end the prospect of a DPA, as a further application can be submitted later. It might be helpful to note that the Judiciary had an important part to play in the whole process surrounding DPAs in the UK. The judges have the last say. We are yet to see whether the judges will want to encourage prosecutors to take a harder line within DPA’s, whether the judges will refuse DPAs on the basis that a course of conduct was too bad to avoid criminal proceedings or whether judges will want to make sure that prosecutors are not over-ambitious with the terms because they have an interest in the amount recovered.
Note that all of these proceedings are in private.
Having obtained court approval for entering into a DPA, and then having agreed the terms of the DPA, the prosecutor must apply again to the Crown Court for a declaration that the DPA is in the interests of justice and is fair, reasonable and proportionate. Once approved by the Crown Court then the DPA comes into force. Reasons will have been given by the court for its approval or otherwise. Any approval of a DPA, and the reasons for the approval, should be given in open court. Thereafter the prosecutor must publish all these details.
Very 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.