Financial penalties as a term of a DPA
Financial penalties as a term of a DPA

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Financial penalties as a term of a DPA
  • Purpose of a financial penalty in a deferred prosecution agreement (DPA)?
  • Financial terms available
  • Compensation
  • Disgorgement of profits
  • Costs
  • Determining a financial penalty
  • Harm, culpability and totality
  • Assessment of harm and culpability in SFO v Standard Bank
  • Assessment of harm and culpability in SFO v Sarclad Ltd
  • More...

Purpose of a financial penalty in a deferred prosecution agreement (DPA)?

Where a financial penalty is to be imposed as a term of a deferred prosecution agreement (DPA), the figure agreed must approximate to what would have been imposed had the organisation pleaded guilty to that offence. There is no statutory requirement that any financial penalty is required but it will be usual practice to include some form of financial order in a DPA. The Deferred Prosecution Agreement Code of Practice (the DPA Code) states that a financial order will normally be a term of a DPA, along with a requirement to pay the reasonable costs of the prosecutor. See paragraph 7.8 and section 8 of the DPA Code.

The prosecutor represents the public interest and the DPA Code requires that they should assist with the identification of appropriate terms of proposed DPAs (including financial penalties) by drawing the judge’s attention where possible and relevant to the following information:

  1. any victim statement or other information about the impact of the offence on the victim

  2. any statutory provisions relevant to the offender and the offences under consideration

  3. any relevant Sentencing Council guidelines and guideline cases, and

  4. the aggravating and mitigating factors of the alleged offence under consideration

Financial terms available

The types of financial terms included as a term of a DPA may include, but are not limited to,

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