Jersey's Deferred Prosecution Agreements Law: The Practical Implementation And Attorney General's Guidance

• Published date: 22 March 2023
• Subject Matter: Corporate/Commercial Law, Criminal Law, Compliance, Corporate and Company Law, White Collar Crime, Anti-Corruption & Fraud
• Law Firm: Ogier
• Author: Mr James Angus and Tom Hall

Ogier partner James Angus advised, in consultation with the Government of Jersey, on the form and ambit of the Criminal Justice (Deferred Prosecution Agreements) (Jersey) Law. Following its receipt of Royal Assent on 15 February 2023, this law is now in force with effect from 3 March 2023.

In this article, James Angus and senior associate Tom Hall share their insights on the practical implementation of Deferred Prosecution Agreements in Jersey.¹

The DPA Law

As anticipated, the Criminal Justice (Deferred Prosecution Agreements) (Jersey) Law (the DPA Law) as enacted passed the States with very few amendments. The amendments made were predominantly to remove wording relating to the legislation's prior draft status.

What was more eagerly awaited was the Attorney General's guidance on how Deferred Prosecution Agreements (DPAs) would be practically implemented in Jersey. The Attorney General's guidance was issued on 3 March 2023,² to coincide with the DPA Law coming into force.

Important reminders on the DPA Law

1. The DPA Law does not apply to individuals. It only applies to "an entity" which is defined as:

• a company
• a foundation
• an incorporated limited partnership
• a limited liability company
• a limited liability partnership
• a separate limited partnership
• any other body or person that has legal personality, but is not an individual or a corporation sole, whether established in Jersey or elsewhere

Importantly for the purposes of a jurisdiction like Jersey, we consider that the above scope would cover a corporate trustee who discovered potential criminal activity in relation to the operation of a trust (including, for example, AML failings)

2. The DPA Law only relates to certain "Specified Offences", which are set out in Schedule 1 to the DPA Law. Broadly speaking, these are "white collar crime" offences, which include, by way of example only, fraud, embezzlement, certain offences under the Companies (Jersey) Law 1991 and certain offences under the Proceeds of Crime (Jersey) Law 1999

3. The DPA Law requires the entity to self-report to the Attorney General in accordance with the DPA Law and the Attorney General's guidance

4. It remains at the discretion of the Attorney General whether the entity has satisfied the criteria for entering into a DPA, based on the DPA Law and the Attorney General's guidance. That will then be subject to discretionary approval by the Royal Court, in accordance with Royal Court's supervisory jurisdiction

5. The Royal Court will not sanction a DPA unless it is satisfied that it is in the interests of justice to do so and the...