Simmons & Simmons partner Stephen Gentle told the Gazette: ‘The consultation on DPAs stated that the “Code of Practice would include provision for the protection of legal professional privilege”.
‘But there is no such provision, and comprehensive self-reporting of wrongdoing will almost certainly lead to companies waiving privilege if a prosecutor suggests that failure to do so will “jeopardise the investigation of the company or individuals”.’
The draft guidelines, published on 27 June, also expand the role of DPAs to take in cases where the threshold for prosecution is not met.
A DPA would only need ‘a prospect of the threshold being met in the future,’ Gentle added. ‘This is compliance engineering through the threat of prosecution, underlining the use of a compliance programme as an effective tool to avoid the threat of prosecution.’
DPAs were introduced in the Crime and Courts Act 2013, which received royal assent in April. Under an agreement, a company agrees to conditions which may include a fine and undertakings on compliance. The prosecution may resume if the conditions are breached