Crime and Courts Bill [HL]

Session 2012 - 13
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Crime and Courts Bill [HL]

Crime and Courts Bill [HL]
Schedule 16 — Deferred prosecution agreements
Part 1 — General
275

(g)
to pay any reasonable costs of the prosecutor in relation to the
alleged offence or the DPA.

The DPA may impose time limits within which P must comply with the
requirements imposed on P.
      (4)
The amount of any financial penalty agreed between the prosecutor and P
5
must be broadly comparable to the fine that a court would have imposed on
P on conviction for the alleged offence following a guilty plea.
      (5)
A DPA may include a term setting out the consequences of a failure by P to
comply with any of its terms.
Code on DPAs
10
6     (1)
The Director of Public Prosecutions and the Director of the Serious Fraud
Office must jointly issue a Code for prosecutors giving guidance on—
(a)
the general principles to be applied in determining whether a DPA is
likely to be appropriate in a given case, and
(b)
the disclosure of information by a prosecutor to P in the course of
15
negotiations for a DPA and after a DPA has been agreed.
      (2)
The Code may also give guidance on any other relevant matter, including—
(a)
the use of information obtained by a prosecutor in the course of
negotiations for a DPA;
(b)
variation of a DPA;
20
(c)
termination of a DPA and steps that may be taken by a prosecutor
following termination;
(d)
steps that may be taken by a prosecutor when the prosecutor
suspects a breach of a DPA.
      (3)
The Code must be set out in the report made by the Director of Public
25
Prosecutions to the Attorney General under section 9 of the Prosecution of
Offences Act 1985 for the year in which the Code is issued.
      (4)
The Code may from time to time be altered or replaced by agreement
between—
(a)
the Director of Public Prosecutions,
30
(b)
the Director of the Serious Fraud Office, and
(c)
any prosecutor who is for the time being designated by an order
made under paragraph 3.
      (5)
If the Code is altered or replaced, the new Code must be set out in the report
made by the Director of Public Prosecutions to the Attorney General under
35
section 9 of the Prosecution of Offences Act 1985 for the year in which the
Code is altered or replaced.
      (6)
A prosecutor must take account of the Code in exercising functions under
this Schedule.
Court approval of DPA: preliminary hearing
40
7     (1)
After the commencement of negotiations between a prosecutor and P in
respect of a DPA but before the terms of the DPA are agreed, the prosecutor
must apply to the Crown Court for a declaration that—
(a)
entering into a DPA with P is likely to be in the interests of justice,
and
45

Crime and Courts Bill [HL]
Schedule 16 — Deferred prosecution agreements
Part 1 — General
276

(b)
the proposed terms of the DPA are fair, reasonable and
proportionate.
      (2)
The court must give reasons for its decision on whether or not to make a
declaration under sub-paragraph (1).
      (3)
The prosecutor may make a further application to the court for a declaration
5
under sub-paragraph (1) if, following the previous application, the court
declined to make a declaration.
      (4)
A hearing at which an application under this paragraph is determined must
be held in private, any declaration under sub-paragraph (1) must be made in
private, and reasons under sub-paragraph (2) must be given in private.
10
Court approval of DPA: final hearing
8     (1)
When a prosecutor and P have agreed the terms of a DPA, the prosecutor
must apply to the Crown Court for a declaration that—
(a)
the DPA is in the interests of justice, and
(b)
the terms of the DPA are fair, reasonable and proportionate.
15
      (2)
But the prosecutor may not make an application under sub-paragraph (1)
unless the court has made a declaration under paragraph 7(1) (declaration
on preliminary hearing).
      (3)
A DPA only comes into force when it is approved by the Crown Court
making a declaration under sub-paragraph (1).
20
      (4)
The court must give reasons for its decision on whether or not to make a
declaration under sub-paragraph (1).
      (5)
A hearing at which an application under this paragraph is determined may
be held in private.
      (6)
But if the court decides to approve the DPA and make a declaration under
25
sub-paragraph (1) it must do so, and give its reasons, in open court.
      (7)
Upon approval of the DPA by the court, the prosecutor must publish—
(a)
the DPA,
(b)
the declaration of the court under paragraph 7 and the reasons for its
decision to make the declaration,
30
(c)
in a case where the court initially declined to make a declaration
under paragraph 7, the court’s reason for that decision, and
(d)
the court’s declaration under this paragraph and the reasons for its
decision to make the declaration,

unless the prosecutor is prevented from doing so by an enactment or by an
35
order of the court under paragraph 12 (postponement of publication to
avoid prejudicing proceedings).
Breach of DPA
9     (1)
At any time when a DPA is in force, if the prosecutor believes that P has
failed to comply with the terms of the DPA, the prosecutor may make an
40
application to the Crown Court under this paragraph.

Crime and Courts Bill [HL]
Schedule 16 — Deferred prosecution agreements
Part 1 — General
277

      (2)
On an application under sub-paragraph (1) the court must decide whether,
on the balance of probabilities, P has failed to comply with the terms of the
DPA.
      (3)
If the court finds that P has failed to comply with the terms of the DPA, it
may—
5
(a)
invite the prosecutor and P to agree proposals to remedy P’s failure
to comply, or
(b)
terminate the DPA.
      (4)
The court must give reasons for its decisions under sub-paragraphs (2) and
(3).
10
      (5)
Where the court decides that P has not failed to comply with the terms of the
DPA, the prosecutor must publish the court’s decision and its reasons for
that decision, unless the prosecutor is prevented from doing so by an
enactment or by an order of the court under paragraph 12 (postponement of
publication to avoid prejudicing proceedings).
15
      (6)
Where the court invites the prosecutor and P to agree proposals to remedy
P’s failure to comply, the prosecutor must publish the court’s decisions
under sub-paragraphs (2) and (3) and the reasons for those decisions, unless
the prosecutor is prevented from doing so by an enactment or by an order of
the court under paragraph 12 (postponement of publication to avoid
20
prejudicing proceedings).
      (7)
Where the court terminates a DPA under sub-paragraph (3)(b), the
prosecutor must publish—
(a)
the fact that the DPA has been terminated by the court following a
failure by P to comply with the terms of the DPA, and
25
(b)
the court’s reasons for its decisions under sub-paragraphs (2) and (3),

unless the prosecutor is prevented from doing so by an enactment or by an
order of the court under paragraph 12 (postponement of publication to
avoid prejudicing proceedings).
      (8)
If the prosecutor believes that P has failed to comply with the terms of the
30
DPA but decides not to make an application to the Crown Court under this
paragraph, the prosecutor must publish details relating to that decision,
including—
(a)
the reasons for the prosecutor’s belief that P has failed to comply,
and
35
(b)
the reasons for the prosecutor’s decision not to make an application
to the court,

unless the prosecutor is prevented from doing so by an enactment or by an
order of the court under paragraph 12 (postponement of publication to
avoid prejudicing proceedings).
40
Variation of DPA
10    (1)
At any time when a DPA is in force, the prosecutor and P may agree to vary
its terms if—
(a)
the court has invited the parties to vary the DPA under paragraph
9(3)(a), or
45
(b)
variation of the DPA is necessary to avoid a failure by P to comply
with its terms in circumstances that were not, and could not have

Crime and Courts Bill [HL]
Schedule 16 — Deferred prosecution agreements
Part 1 — General
278

been, foreseen by the prosecutor or P at the time that the DPA was
agreed.
      (2)
When the prosecutor and P have agreed to vary the terms of a DPA, the
prosecutor must apply to the Crown Court for a declaration that—
(a)
the variation is in the interests of justice, and
5
(b)
the terms of the DPA as varied are fair, reasonable and
proportionate.
      (3)
A variation of a DPA only takes effect when it is approved by the Crown
Court making a declaration under sub-paragraph (2).
      (4)
The court must give reasons for its decision on whether or not to make a
10
declaration under sub-paragraph (2).
      (5)
A hearing at which an application under this paragraph is determined may
be held in private.
      (6)
But if the court decides to approve the variation and make a declaration
under sub-paragraph (2) it must do so, and give its reasons, in open court.
15
      (7)
Where the court decides not to approve the variation, the prosecutor must
publish the court’s decision and the reasons for it, unless the prosecutor is
prevented from doing so by an enactment or by an order of the court under
paragraph 12 (postponement of publication to avoid prejudicing
proceedings).
20
      (8)
Where the court decides to approve the variation the prosecutor must
publish—
(a)
the DPA as varied, and
(b)
the court’s declaration under this paragraph and the reasons for its
decision to make the declaration,
25

unless the prosecutor is prevented from doing so by an enactment or by an
order of the court under paragraph 12 (postponement of publication to
avoid prejudicing proceedings).
Discontinuance of proceedings on expiry of DPA
11    (1)
If a DPA remains in force until its expiry date, then after the expiry of the
30
DPA the proceedings instituted under paragraph 2(1) are to be discontinued
by the prosecutor giving notice to the Crown Court that the prosecutor does
not want the proceedings to continue.
      (2)
Where proceedings are discontinued under sub-paragraph (1), fresh
criminal proceedings may not be instituted against P for the alleged offence.
35
      (3)
But sub-paragraph (2) does not prevent fresh proceedings from being
instituted against P in a case where, after a DPA has expired, the prosecutor
finds that, during the course of the negotiations for the DPA—
(a)
P provided inaccurate, misleading or incomplete information to the
prosecutor, and
40
(b)
P knew or ought to have known that the information was inaccurate,
misleading or incomplete.
      (4)
A DPA is not to be treated as having expired for the purposes of sub-
paragraph (1) if, on the expiry date specified in the DPA—

Crime and Courts Bill [HL]
Schedule 16 — Deferred prosecution agreements
Part 1 — General
279

(a)
an application made by the prosecutor under paragraph 9 (breach)
has not yet been decided by the court,
(b)
following an application under paragraph 9 the court has invited the
parties to agree proposals to remedy P’s failure to comply, but the
parties have not yet reached an agreement, or
5
(c)
the parties have agreed proposals to remedy P’s failure to comply
following an invitation of the court under paragraph 9(3)(a) but P has
not yet complied with the agreement.
      (5)
In the case mentioned in sub-paragraph (4)(a)—
(a)
if the court decides that P has not failed to comply with the terms of
10
the DPA, or that P has failed to comply but does not take action
under paragraph 9(3), the DPA is to be treated as expiring when the
application is decided;
(b)
if the court terminates the DPA, the DPA is to be treated as not
having remained in force until its expiry date (and sub-paragraph (1)
15
therefore does not apply);
(c)
if the court invites the parties to agree proposals to remedy P’s
failure to comply, the DPA is to be treated as expiring when the
parties have reached such an agreement and P has complied with it.
      (6)
In the case mentioned in sub-paragraph (4)(b), the DPA is to be treated as
20
expiring when the parties have reached an agreement and P has complied
with it.
      (7)
In the case mentioned in sub-paragraph (4)(c), the DPA is to be treated as
expiring when P complies with the agreement.
      (8)
Where proceedings are discontinued under sub-paragraph (1), the
25
prosecutor must publish—
(a)
the fact that the proceedings have been discontinued, and
(b)
details of P’s compliance with the DPA,

unless the prosecutor is prevented from doing so by an enactment or by an
order of the court under paragraph 12 (postponement of publication to
30
avoid prejudicing proceedings).
Court order postponing publication of information by prosecutor
12
The court may order that the publication of information by the prosecutor
under paragraph 8(7), 9(5), (6), (7) or (8), 10(7) or (8) or 11(8) be postponed
for such period as the court considers necessary if it appears to the court that
35
postponement is necessary for avoiding a substantial risk of prejudice to the
administration of justice in any legal proceedings.
Use of material in criminal proceedings
13    (1)
Sub-paragraph (2) applies where a DPA between a prosecutor and P has
been approved by the Crown Court under paragraph 8.
40
      (2)
The statement of facts contained in the DPA is, in any criminal proceedings
brought against P for the alleged offence, to be treated as an admission by P
under section 10 of the Criminal Justice Act 1967 (proof by formal
admission).

Crime and Courts Bill [HL]
Schedule 16 — Deferred prosecution agreements
Part 2 — Offences in relation to which a DPA may be entered into
280

      (3)
Sub-paragraph (4) applies where a prosecutor and P have entered into
negotiations for a DPA but the DPA has not been approved by the Crown
Court under paragraph 8.
      (4)
Material described in sub-paragraph (6) may only be used in evidence
against P—
5
(a)
on a prosecution for an offence consisting of the provision of
inaccurate, misleading or incomplete information, or
(b)
on a prosecution for some other offence where in giving evidence P
makes a statement inconsistent with the material.
      (5)
However, material may not be used against P by virtue of sub-paragraph
10
(4)(b) unless evidence relating to it is adduced, or a question relating to it is
asked, by or on behalf of P in the proceedings arising out of the prosecution.
      (6)
The material is—
(a)
material that shows that P entered into negotiations for a DPA,
including in particular—
15
(i)
any draft of the DPA;
(ii)
any draft of a statement of facts intended to be included
within the DPA;
(iii)
any statement indicating that P entered into such
negotiations;
20
(b)
material that was created solely for the purpose of preparing the
DPA or statement of facts.
Money received by prosecutor under a DPA
14
Any money received by a prosecutor under a term of a DPA that provides
for P to pay a financial penalty to the prosecutor or to disgorge profits made
25
from the alleged offence is to be paid into the Consolidated Fund.
Part 2
Offences in relation to which a DPA may be entered into
Common law offences
15
Conspiracy to defraud.
30
16
Cheating the public revenue.
Statutory offences
17
An offence under any of the following sections of the Theft Act 1968—
(a)
section 1 (theft);
(b)
section 17 (false accounting);
35
(c)
section 20 (suppression etc of documents);
(d)
section 24A (dishonestly retaining a wrongful credit).
18
An offence under any of the following sections of the Customs and Excise
Management Act 1979—
(a)
section 68 (offences in relation to exportation of prohibited or
40
restricted goods);
(b)
section 167 (untrue declarations etc);

Crime and Courts Bill [HL]
Schedule 16 — Deferred prosecution agreements
Part 2 — Offences in relation to which a DPA may be entered into
281

(c)
section 170 (fraudulent evasion of duty etc).
19
An offence under any of the following sections of the Forgery and
Counterfeiting Act 1981—
(a)
section 1 (forgery);
(b)
section 2 (copying a false instrument);
5
(c)
section 3 (using a false instrument);
(d)
section 4 (using a copy of a false instrument);
(e)
section 5 (offences relating to money orders, share certificates,
passports etc).
20
An offence under section 450 of the Companies Act 1985 (destroying,
10
mutilating etc company documents).
21
An offence under section 72 of the Value Added Tax Act 1994 (fraudulent
evasion of VAT).
22
An offence under any of the following sections of the Financial Services and
Markets Act 2000—
15
(a)
section 23 (contravention of prohibition of carrying on regulated
activity unless authorised or exempt);
(b)
section 25 (contravention of restrictions on financial promotion);
(c)
section 85 (prohibition of dealing etc in transferable securities
without approved prospectus);
20
(d)
section 346 (provision of false or misleading statements to auditor or
actuary);
(e)
section 397 (misleading statements and practices);
(f)
section 398 (misleading the FSA).
23
An offence under any of the following sections of the Proceeds of Crime Act
25
2002—
(a)
section 327 (concealing etc criminal property);
(b)
section 328 (arrangements facilitating acquisition etc of criminal
property);
(c)
section 329 (acquisition, use and possession of criminal property);
30
(d)
section 330 (failing to disclose knowledge or suspicion of money
laundering);
(e)
section 333A (tipping off).
24
An offence under any of the following sections of the Companies Act 2006—
(a)
section 658 (general rule against limited company acquiring its own
35
shares);
(b)
section 680 (prohibited financial assistance);
(c)
section 993 (fraudulent trading).
25
An offence under any of the following sections of the Fraud Act 2006—
(a)
section 1 (fraud);
40
(b)
section 6 (possession etc of articles for use in frauds);
(c)
section 7 (making or supplying articles for use in frauds);
(d)
section 11 (obtaining services dishonestly).
26
An offence under any of the following sections of the Bribery Act 2010—
(a)
section 1 (bribing another person);
45
(b)
section 2 (being bribed);