INTRODUCTION Contributed by: Deepak Vij, ABV Solicitors
A DPA is an agreement reached between a prosecu - tor and an organisation which could be prosecuted, under the supervision of a judge. The agreement allows a prosecution to be suspended for a defined period, provided the organisation meets certain speci - fied conditions. DPAs can be used for fraud, bribery and other economic crime. They apply to organisa - tions, never individuals. The key features of DPAs are that they: • enable a corporate body to make full reparation for criminal behaviour without the collateral damage of a conviction; • 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”; • avoid lengthy and costly trials; and • are transparent, public events. UK To date, the SFO has entered into 13 DPAs, but none since the 2023 agreement between the Crown Pros - ecution Service and Entain plc for a failure to prevent bribery. The corporation agreed to pay over GBP615 million in reparation over a four-year period. The benefits of DPAs to resolve corporate misconduct liability have made them attractive to other nations. USA In the USA, the government may decline or defer prosecution after considering the evidence relevant to the financial crime. While the circumstances of a non-prosecution or deferred prosecution agreement are case-specific, the government typically enters into these agreements where the defendant has voluntarily and promptly disclosed its misconduct, co-operated with the government’s investigation, and engaged in remedial steps. Europe France was inspired to introduce the Convention Judi- ciaire d’Intérêt Public , which is a similar model to the DPA and concluded its first one in 2017. Singapore did the same when they introduced the Criminal Justice
Act in the same year, with Canada, Japan and Argen - tina following suit. Following the introduction in Singapore of the Crimi - nal Justice Act, financial crime plea discussions may occur between the accused and the public prosecutor, but any private “plea agreements” are not specifically enforceable. Deferred or non-prosecution agreements are available in certain circumstances but extremely rare. In Portugal there is a similar provision to a DPA. A central instrument of consensual resolution is the provisional suspension of proceedings ( suspensão provisória do processo ), whereby the public prosecu - tor proposes the suspension, subject to the defend - ant’s acceptance of certain obligations - such as payments or regularisation measures – with the agree - ment of both the injured party and the judge. Upon full compliance with such obligations, the proceedings are ultimately discontinued. However, recourse to this mechanism is only permissible at the early stages of criminal proceedings and only in respect of offences punishable with no more than five years’ imprison - ment. In offences such as corruption, embezzlement, and money laundering, provisions of a “reward-based” nature exist, whereby decisive co-operation with the authorities and the restitution of illicit advantages may result in a waiver of penalty or significant mitigation. Although there is no broad system of plea bargaining, the combination of mechanisms, such as regularisa - tion, co-operation, provisional suspension, and waiver or mitigation of penalties, effectively enables negoti - ated solutions and significant reductions in sanctions within the Portuguese legal system. In Greece, however, DPAs are not available. Criminal negotiation (Article 303 of the Code of Criminal Proce - dure) may be initiated upon request of the defendant or at the initiative of the prosecutor at any stage prior to the commencement of the evidentiary proceedings before the trial court, in exchange for a confession and a reduced sentence. The relevant agreement is drawn up in writing and must be ratified by the court. If no agreement is reached, the criminal proceedings con - tinue from the stage at which they were interrupted, and any written request by the defendant or invitation
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