Part 6 Information to enable a court to deal with an offender

Power to disclose information

27 (1) The Secretary of State or a Northern Ireland Department, or a person
5providing services to the Secretary of State or a Northern Ireland
Department, may disclose social security information to a relevant person.

(2) Her Majesty’s Revenue and Customs, or a person providing services to the
Commissioners for Her Majesty’s Revenue and Customs, may disclose
finances information to a relevant person.

(3) 10The disclosure authorised by sub-paragraph (1) or (2) is disclosure of the
information concerned for use by a court that, in connection with dealing
with a person (“the defendant”) for an offence, is inquiring into or
determining the defendant’s financial circumstances.

(4) Sub-paragraphs (1) and (2) do not authorise disclosure in a particular case at
15a time when the defendant is under 18.

(5) Information disclosed to a relevant person under sub-paragraph (1) or (2) or
paragraph (a)(ii)—

(a) must not be further disclosed by the relevant person except—

(i) to a court that, in connection with dealing with the defendant
20for the offence, is inquiring into or determining the
defendant’s financial circumstances, or

(ii) to another relevant person who wants social security
information or finances information in order that it can be put
before a court that, in connection with dealing with the
25defendant for the offence, is inquiring into or determining the
defendant’s financial circumstances, and

(b) must not be used by the relevant person otherwise than for the
purpose of disclosing it as mentioned in paragraph (a)(i) or (ii).

(6) Sub-paragraphs (1), (2) and (5)(a) not only authorise disclosure after
30conviction of the defendant but also authorise disclosure at any time after
the defendant is first charged with the offence.

(7) Sub-paragraph (5) does not prohibit—

(a) disclosure to the defendant, or to a person representing the
defendant in any proceedings in connection with the offence;

(b) 35disclosure or use of information which is in the form of a summary
or collection of information so framed as not to enable information
relating to any particular person to be ascertained from it;

(c) disclosure or use of information which has previously been disclosed
to the public with lawful authority;

(d) 40disclosure or use of information so far as necessary to comply with—

(i) an order of a court,

(ii) an order of a tribunal established by or under an Act, or

(iii) a duty imposed by or under an Act.

(8) In sub-paragraph (7) “court” means any court, but elsewhere in this
45paragraph “court” means—

(a) a magistrates’ court, or the Crown Court, in England and Wales,

(b) the Court Martial, the Service Civilian Court or the Summary Appeal
Court, or

(c) any court hearing an appeal (including an appeal by case stated)
5from a court within paragraph (a) or (b).

(9) In this paragraph—

• “finances information” means information which—

  (a)

  is about a person’s income, gains or capital, and

  (b)

  is held—

  (i)

  10by Her Majesty’s Revenue and Customs, or

  (ii)

  by a person providing services to the Commissioners
  for Her Majesty’s Revenue and Customs in
  connection with the provision of those services;

• “relevant person” means—

  (a)

  15a person who is appointed by the Lord Chancellor under
  section 2(1) of the Courts Act 2003 or provided under a
  contract made by virtue of section 2(4) of that Act,

  (b)

  a person who is a member of or on the staff of the Service
  Prosecuting Authority, or

  (c)

  20a person not within paragraph (b) who is, or who is assisting,
  a person engaged to represent the Service Prosecuting
  Authority in proceedings before a court;

• “Service Prosecuting Authority” means—

  (a)

  the Director of Service Prosecutions, and

  (b)

  25the persons appointed under section 365 of the Armed Forces
  Act 2006 (prosecuting officers);

• “social security information” means information which is held for the
  purposes of functions relating to social security—

  (a)

  by the Secretary of State or a Northern Ireland Department,
  30or

  (b)

  by a person providing services to the Secretary of State, or a
  Northern Ireland Department, in connection with the
  provision of those services,

  or information which is held with information so held.

(10) 35The reference in sub-paragraph (9) to functions relating to social security
includes a reference to functions relating to any of the matters listed in
section 127(8) of the Welfare Reform Act 2012 (statutory payments and
maternity allowances).

Offence where information wrongly used or disclosed

28 (1) 40It is an offence for a person to disclose or use information in contravention
of paragraph 27(5).

(2) It is a defence for a person charged with an offence under sub-paragraph (1)
to prove that the person reasonably believed that the disclosure or use
concerned was lawful.

(3) 45A person guilty of an offence under sub-paragraph (1) is liable—

(a) on conviction on indictment—

(i) to imprisonment for a term not exceeding 2 years, or

(ii) to a fine, or

(iii) to both;

(b) on summary conviction—

(i) to imprisonment for a period not exceeding 12 months, or

(ii) 5to a fine not exceeding the statutory maximum, or

(iii) to both.

(4) Sub-paragraph (3)(b) applies—

(a) in England and Wales in relation to offences committed before the
commencement of section 154(1) of the Criminal Justice Act 2003
10(general limit on power of magistrates’ courts to impose
imprisonment), and

(b) in Northern Ireland,

as if the reference to 12 months were a reference to 6 months.

(5) A prosecution for an offence under sub-paragraph (1)—

(a) 15may be instituted in England and Wales only by or with the consent
of the Director of Public Prosecutions, and

(b) may be instituted in Northern Ireland only by or with the consent of
the Director of Public Prosecutions for Northern Ireland.

Part 7 20Related amendments in Armed Forces Act 2006

Community orders: punitive elements

29 The Armed Forces Act 2006 is amended as follows.

30 In section 178 (service community orders), in subsection (3) (provisions of
the 2003 Act in which “community order” includes a service community
25order) for “177(3)” substitute “177(2A)”.

31 (1) Section 182 (overseas community orders) is amended as follows.

(2) After subsection (3) insert—

“(3A) In section 177(2A) and (2B) of the 2003 Act (community orders:
punitive elements) “community order” includes an overseas
30community order if the offender is aged 18 or over when convicted
of the offence in respect of which the overseas community order is
made.”

(3) In subsection (5) (provisions of the 2003 Act in which “court” includes a
relevant service court) for “those provisions” substitute “the provisions of
35the 2003 Act mentioned in subsections (3A) and (4)”.

32 In section 270 (restrictions on community punishments) after subsection (2)
insert—

“(2A) Subsection (2) is subject to section 177(2A) of the 2003 Act
(community orders: punitive elements) as applied by section 178(3)
40and section 182(3A).”

33 An amendment made by any of paragraphs 30 to 32 does not affect orders in
respect of offences committed before the amendment comes into force.

Removal of limits on compensation orders made against adults

34 (1) Section 284 of the Armed Forces Act 2006 (Service Civilian Court
compensation orders etc: maximum amounts) is amended as follows.

(2) After subsection (2) insert—

“(2A) 5The following subsections apply if (but only if) the Service Civilian
Court has convicted a person aged under 18 (“the offender”) of an
offence or offences.”

Electronic monitoring of offenders

35 (1) 15The Armed Forces Act 2006 is amended as follows.

(2) In section 182(1A) (requirements which may not be included in overseas
community orders) at the end insert “or (m) (an electronic monitoring
requirement)”.

(3) In section 183(1) (provisions of Criminal Justice Act 2003 which do not apply
20to overseas community orders) for “section 215” substitute “sections 215 and
215A”.

Statements of assets and other financial circumstances of offenders etc

36 In section 266(2) of the Armed Forces Act 2006 (meaning of “financial
statement order”) after “statement of his” insert “assets and other”.

Section 25

25SCHEDULE 17 Deferred prosecution agreements

Part 1 General

Characteristics of a deferred prosecution agreement

1 (1) 30A deferred prosecution agreement (a “DPA”) is an agreement between a
designated prosecutor and a person (“P”) whom the prosecutor is
considering prosecuting for an offence specified in Part 2 (the “alleged
offence”).

(2) Under a DPA—

(a) 35P agrees to comply with the requirements imposed on P by the
agreement;

(b) the prosecutor agrees that, upon approval of the DPA by the court
(see paragraph 8), paragraph 2 is to apply in relation to the
prosecution of P for the alleged offence.

Effect of DPA on court proceedings

2 (1) 5Proceedings in respect of the alleged offence are to be instituted by the
prosecutor in the Crown Court by preferring a bill of indictment charging P
with the alleged offence (see section 2(2)(ba) of the Administration of Justice
(Miscellaneous Provisions) Act 1933 (bill of indictment preferred with
consent of Crown Court judge following DPA approval)).

(2) 10As soon as proceedings are instituted under sub-paragraph (1) they are
automatically suspended.

(3) The suspension may only be lifted on an application to the Crown Court by
the prosecutor; and no such application may be made at any time when the
DPA is in force.

(4) 15At a time when proceedings are suspended under sub-paragraph (2), no
other person may prosecute P for the alleged offence.

Designated prosecutors

3 (1) The following are designated prosecutors—

(a) the Director of Public Prosecutions;

(b) 20the Director of the Serious Fraud Office;

(c) any prosecutor designated under this paragraph by an order made
by the Secretary of State.

(2) A designated prosecutor must exercise personally the power to enter into a
DPA and, accordingly, any enactment that enables a function of a
25designated prosecutor to be exercised by a person other than the prosecutor
concerned does not apply.

(3) But if the designated prosecutor is unavailable, the power to enter into a
DPA may be exercised personally by a person authorised in writing by the
designated prosecutor.

30Persons who may enter into a DPA with a prosecutor

4 (1) P may be a body corporate, a partnership or an unincorporated association,
but may not be an individual.

(2) In the case of a DPA between a prosecutor and a partnership—

(a) the DPA must be entered into in the name of the partnership (and not
35in that of any of the partners);

(b) any money payable under the DPA must be paid out of the funds of
the partnership.

(3) In the case of a DPA between a prosecutor and an unincorporated
association—

(a) 40the DPA must be entered into in the name of the association (and not
in that of any of its members);

(b) any money payable under the DPA must be paid out of the funds of
the association.

Content of a DPA

5 (1) A DPA must contain a statement of facts relating to the alleged offence,
which may include admissions made by P.

(2) A DPA must specify an expiry date, which is the date on which the DPA
5ceases to have effect if it has not already been terminated under paragraph
9 (breach).

(3) The requirements that a DPA may impose on P include, but are not limited
to, the following requirements—

(a) to pay to the prosecutor a financial penalty;

(b) 10to compensate victims of the alleged offence;

(c) to donate money to a charity or other third party;

(d) to disgorge any profits made by P from the alleged offence;

(e) to implement a compliance programme or make changes to an
existing compliance programme relating to P’s policies or to the
15training of P’s employees or both;

(f) to co-operate in any investigation related to the alleged offence;

(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
20requirements imposed on P.

(4) The amount of any financial penalty agreed between the prosecutor and P
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
25comply with any of its terms.

Code on DPAs

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
30likely to be appropriate in a given case, and

(b) the disclosure of information by a prosecutor to P in the course of
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
35negotiations for a DPA;

(b) variation of a DPA;

(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
40suspects a breach of a DPA.

(3) The Code must be set out in the report made by the Director of Public
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
45between—

(a) the Director of Public Prosecutions,

(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) 5If 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
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
10this Schedule.

Court approval of DPA: preliminary hearing

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) 15entering into a DPA with P is likely to be in the interests of justice,
and

(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
20declaration under sub-paragraph (1).

(3) The prosecutor may make a further application to the court for a declaration
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
25be 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.

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) 30the DPA is in the interests of justice, and

(b) the terms of the DPA are fair, reasonable and proportionate.

(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) 35A DPA only comes into force when it is approved by the Crown Court
making a declaration under sub-paragraph (1).

(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
40be held in private.

(6) But if the court decides to approve the DPA and make a declaration under
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,

(c) in a case where the court initially declined to make a declaration
5under 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
order of the court under paragraph 12 (postponement of publication to
10avoid 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
application to the Crown Court under this paragraph.

(2) 15On 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—

(a) 20invite 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).

(5) 25Where 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).

(6) 30Where 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
35prejudicing 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

(b) 40the 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
45DPA 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

(b) the reasons for the prosecutor’s decision not to make an application
to the court,

5unless 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).

Variation of DPA

10 (1) At any time when a DPA is in force, the prosecutor and P may agree to vary
10its terms if—

(a) the court has invited the parties to vary the DPA under paragraph
9(3)(a), or

(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
15been, 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

(b) 20the 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
25declaration 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.

(7) 30Where 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).

(8) 35Where 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,

40unless 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
45DPA 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.

(3) 5But 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

(b) 10P 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—

(a) an application made by the prosecutor under paragraph 9 (breach)
15has 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

(c) the parties have agreed proposals to remedy P’s failure to comply
20following 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
the DPA, or that P has failed to comply but does not take action
25under 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)
therefore does not apply);

(c) 30if 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
expiring when the parties have reached an agreement and P has complied
35with 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
prosecutor must publish—

(a) 40the 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
avoid prejudicing proceedings).

45Court 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