‘A DPA can help minimise financial loss caused by a prosecution’

Salim Bashir.-filepic

PETALING JAYA: A deferred prosecution agreement (DPA) is an agreement that allows a prosecution to be suspended provided the party facing prosecution meets certain conditions.

Former Malaysian Bar president Salim Bashir said the mechanism is commonly used for financial crimes, and could hold corporate entities accountable for wrongdoings.

When contacted yesterday, Salim said a DPA can also help minimise the financial or economic loss caused by a prosecution.

“Besides that, a DPA will encourage self-reporting of information about past mismanagement without fear of being prosecuted.”

In initiating a DPA, the prosecution will usually consider a number of factors, such as the extent of the offender’s cooperation with investigators and the consequences of prosecution on non-involved employees or other innocent parties such as shareholders.

According to Salim, the conditions imposed on the offender under a DPA vary depending on the gravity of the offences.

It may include payment of fines, an admission of guilt without pleading guilty in court, the return of monies associated with offences, and others.

While a corporation can enter into a DPA, it does not mean individuals within the corporation are protected from being charged.

A DPA must also be approved by the court based on the interest of justice and proportionality, said Salim.

He said the government should formulate strict rules in employing a DPA, such as those imposed by Britain when it introduced DPA provisions via its Crime and Courts Act 2013.

For example, according to the UK’s Serious Fraud Office website, a DPA is reached between a prosecutor and an organisation under the supervision of a judge.

In the UK context, DPAs can be used for fraud, bribery and other economic crimes and apply only to organisations, never individuals.

DPAs avoid lengthy and costly trials, and are also transparent, public events.

A conviction could, for example, impose sanctions or cause reputational damage that could put the company out of business and destroy the jobs and investments of innocent people.