Use of material and disclosure in the DPA process
Use of material and disclosure in the DPA process

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

  • Use of material and disclosure in the DPA process
  • Disclosure in the DPA negotiation process
  • Prosecution duty to disclose
  • Prosecution obligations in respect of lines of enquiry
  • Continuing duty of disclosure
  • Written declaration in accordance with the Criminal Procedure Rules
  • Use of material against an organisation where no DPA reached
  • Use of material against the organisation post-DPA (following breach)
  • Use of DPA negotiation disclosure material against individuals
  • Disclosure in subsequent civil proceedings

Disclosure in the DPA negotiation process

One of the factors in the deferred prosecution agreement (DPA) negotiation process, which can influence a company’s chances of avoiding a prosecution, is co-operation. This is set out in the DPA Code of Practice (DPA Code) at paragraph 2.8.2 and emphasised by the Serious Fraud Office (SFO) in the chapters on DPAs and corporate co-operation in its operational handbook, see further Practice Notes: Corporate co-operation guidance for organisations seeking a DPA and DPA process. For more information, see Practice Note: DPAs in practice—Co-operation—the most important factor?

What co-operation means in these circumstances has been a subject of significant comment, judicial and otherwise, see, for example, Practice Notes: DPAs in practice — What constitutes ‘co-operation’—examples from the DPAs to date? and The SFO's approach to Deferred Prosecution Agreements (DPAs)—SFO’s approach to privilege and adequate procedures defence. See also Practice Note: Privilege in DPA negotiations—The court’s approach to privilege in DPAs—a question of co-operation.

What is clear is that co-operation includes disclosing, as part of a self-report and during any negotiations for a DPA, matters which the authorities would otherwise not be aware of, material which might otherwise not have come into existence, or material which may be subject to legal professional privilege (LPP).

Negotiations with a view to settling a DPA will only be conducted on the basis that the organisation is

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