Deferred Prosecution Agreements

Deferred Prosecution Agreements (DPAs) were introduced in England and Wales in 2014, and their numbers are steadily increasing.

DPAs operate in the following way. Where either the Director of the Serious Fraud Office or the Director of Public Prosecutions is considering whether to prosecute a company for certain economic crimes, including bribery or fraud, he or she may agree with that company not to prosecute it on condition that, within a defined time period, the company meets the conditions imposed on it in the agreement. Typically, these conditions will include the payment of compensation, the disgorgement of profit, the payment of a penalty and costs, the provision of continued co-operation with the prosecutor and others, and undertaking a corporate renewal programme. No such agreement can take effect unless and until it has been approved by a judge as being both in the interests of justice and of having terms which are fair, reasonable and proportionate. If a company does not meet its obligations under the agreement, the agreement can be revoked and it can be prosecuted.

Onerous though DPAs can be, no company wishes to be prosecuted given the expense and reputational damage involved as well as the inevitable litigation risk of a conviction and the associated risk of being barred from tendering for public sector contracts. Prosecutors understand this well, and seek to incentivise companies to cooperate with the investigations into them by making clear that they will only offer the possibility of DPA negotiations to co-operative companies and that co-operation starts with a self-report.

In April 2025, the SFO updated its co-operation guidance. It made clear that if a company self-reports promptly to it, and then co-operates fully with its investigation, it will invite it to negotiate a DPA rather than prosecute it, unless exceptional circumstances apply. The guidance contains non-exhaustive lists of what the SFO regards as genuine co-operation and uncooperative behaviours.

We have been involved in many of the DPA cases, and some of our partners have negotiated such agreements. We are therefore ideally-placed to guide companies through the process from start to finish.