THE GROWTH OF DEFERRED PROSECUTION AGREEMENTS
CD: To what extent are deferred prosecution agreements (DPAs) being used as an alternative to traditional prosecution?
Sikellis: Deferred prosecution agreements (DPAs) are increasingly employed across major jurisdictions as alternatives to traditional criminal prosecution, particularly in cases involving corporate misconduct. The US pioneered the use of DPAs in the early 1990s, and they have since become a mainstay of US enforcement strategy, with hundreds of agreements concluded over the past three decades. The UK, France, Canada, Singapore and Australia have also adopted DPA regimes, adapting them to their respective legal systems. While DPAs are most prevalent in common law countries, several civil law jurisdictions have introduced similar mechanisms. Their frequency is highest in cases of bribery, corruption, fraud and financial crime, reflecting their value in resolving complex, multijurisdictional matters efficiently.
CD: What are the key advantages of using a DPA? What criteria must a company meet to secure judicial approval?
Sikellis: DPAs offer several notable advantages, First, they allow for the swift resolution of investigations without the need for lengthy trials. Second, corporations are incentivised to cooperate with authorities, implement compliance reforms and provide restitution. Third, by avoiding criminal convictions, DPAs mitigate the risk of debarment, loss of licences and reputational harm that can impact innocent stakeholders. Finally, prosecutorial and judicial resources are conserved for the most egregious or intractable cases. Judicial approval of DPAs typically depends on criteria such as the public interest, the adequacy of proposed penalties and compliance undertakings and the transparency of the agreement. Courts in the UK and France, for example, must be satisfied that the DPA is ‘fair, reasonable and proportionate’ and serves the interests of justice.
Apr-Jun 2026 issue
Novartis