There is much talk about “Deferred Prosecution Agreements” because of the SNC Lavalin bribery scandals. The insinuation from many media outlets is that a Deferred Prosecution Agreement lets companies go without punishment. This is far from how DPA’s actually work.
Here are the top five things everyone should know about Deferred Prosecution Agreements:
1 – What a Deferred Prosecution Agreement Is:
A Deferred Prosecution Agreement effectively has the company plead guilty and do whatever the Government prosecutor wants them to do which lets us all avoid the hassles, delays and costs of court.
A company that signs a DPA volunteers to admit guilt, pay fines, change leadership and other nasty terms, and the Government prosecutor agrees not to proceed with criminal remedies, unless the company does not complete their DPA to the prosecutors satisfaction.
The United Kingdom has a nice summary of DPA’s in case you still want more clarification:
- They enable a corporate body to make full reparation for criminal behaviour without the collateral damage of a conviction (for example sanctions or reputational damage that could put the company out of business and destroy the jobs and investments of innocent people).
- They are concluded under the supervision of a judge, who must be convinced that the DPA is ‘in the interests of justice’ and that the terms are ‘fair, reasonable and proportionate’
- They avoid lengthy and costly trials
- They are transparent, public events
2 – What are Common Punishments Under a Deferred Prosecution Agreement?
Common terms in a DPA include:
- public written admission of guilt
- change staff (often senior management)
- exiting a particular market or product category
- agreeing to avoiding a behavior, like bribery, in the future
3 – What Happens If A Company Does Not Follow The Deferred Prosecution Agreement?
If the terms are not adhered to, the Prosecutor will cancel the agreement and either pursue the original criminal prosecution or go after an additional remedy specified in the DPA.
4 – What a What Is a Deferred Prosecution Agreement Is Not:
A Deferred Prosecution Agreement is not a pass, a get out of jail free card, an exception or even an easy way out. It is also not an unusual legal arrangement specific to just Canada or the United States.
5 – Deferred Prosecution Agreements Around the Globe:
- Australia – In December 2017 Australia introduced DPA’s
- Britain – The United Kingdom introduced the notion of a DPA in 2012 and brought them formally into law in April of 2013
- Canada – In Canada, DPA’s were introduced in 2008 although they were then called “Prosecutorial Discretion”. In June of 2018 Deferred Prosecution Agreements were formally added to the Canadian Criminal code under Bill C-74.
- France – “Convention judiciaire d’intérêt public” have been used in France since November 2017
- Singapore – DPA’s were added to the Singapore legal system in March of 2018
- United States – Deferred Prosecution Agreements were added to the US Government Prosecutors toolkit in 1999 and have been used 10 to 20 times per year. The United States legislation adds a particularly peculiar twist to the DPA’s by allowing them to be applied to people as well as companies