Taking a leap of faith to secure a Jersey deferred prosecution agreement

Taking the first steps towards a DPA

Prosecutors, Regulators, Law Enforcement, compliance staff, legal representatives and the Board members of the company are all likely to harbour different views about the merits of embarking on a deferred prosecution agreement. From the outset all parties need to establish a degree of trust, respect and goodwill to alleviate mistrust or unfounded suspicions that one of the parties is either being unreasonable or withholding information.

Bearing all in a self-report

Compiling a self-report revealing in considerable detail the breaches of the law committed by the company is a bold and brave first step to take for any board. Boards will understandably fear that such a report risks the regulator and or the Attorney General simply using the document to secure a conviction or in the case of the JFSC duplicating the penalty imposed by the DPA.

It’s good to talk

Having early mature and sensible exploratory discussions with the regulator and the prosecution about the prospect of a DPA are essential in building the goodwill and confidence necessary between all parties before embarking on the DPA process. For the Board, it’s a leap of faith that admissions made will be used in the DPA process and not simply recycled to support a prosecution/conviction.

Is my case suitable for a DPA?

A DPA comes at a cost and the benefits and drawbacks need to be carefully analysed even before exploratory discussions. Timing is important. A DPA is more likely if the breaches are previously unknown to the authorities and the business is proactive in its disclosure. If served with a production order and an investigation is already in progress it may be to be too late for a DPA.

If you are considering pursuing a deferred prosecution agreement then contact Barry Faudemer or Simon Thomas to discuss the benefits and drawbacks of a DPA.