Adv. Sam Brown briefs the JCOA on Jersey deferred prosecution agreements (DPA)

ON April 28^th, 2025, Crown Advocate Sam Brown briefed the JCOA on the ECCU, Moneyval, corporate liability and deferred prosecutions (DPA)

Crown Advocate Sam Brown talks on DPO follows Jersey's first agreement on 18 December 2024:-

1. Afex Offshore (Jersey) Limited entered into Jersey's first Deferred Prosecution Agreement (DPA) under the Criminal Justice (Deferred Prosecution Agreements) (Jersey) Law 2023.
2. This agreement allows corporate entities to avoid prosecution by meeting certain conditions set by the Attorney General.
3. Afex Offshore was fined £468,000 in total, which includes £408,000 for regulatory breaches and £60,000 for the Attorney General's costs.
4. The breaches involved failures in customer due diligence, risk assessment, and monitoring, which exposed the company to significant money laundering risks.
5. The DPA required Afex Offshore to implement remedial measures and improve its compliance framework to prevent future violations.

SOURCES

6. https://www.comsuregroup.com/news/afex-offshore-jersey-limited-have-entered-into-a-deferred-prosecution-agreements-dpa-and-been-fined-468k/
7. https://www.gov.je/SiteCollectionDocuments/Government%20and%20administration/Agreed%20statement%20of%20facts%20AG%20anonymised%20post%20hand%20down.pdf

Crown Advocate Sam Brown pointed out that the APRIL 2025 updated guidance on Deferred Prosecution Agreements (DPAs) issued by the Attorney General of Jersey includes several key points:

1. Eligibility Criteria: Companies must meet specific criteria to be eligible for a DPA, including the nature and severity of the offence, cooperation with the investigation, and willingness to implement remedial measures.
2. Transparency and Accountability: Companies entering a DPA must agree to high levels of transparency and accountability, including regular reporting and independent monitoring.
3. Remedial Actions: Emphasis is placed on implementing effective remedial actions to address underlying issues, such as improving compliance programs, conducting employee training, and enhancing internal controls.
4. Financial Penalties: Substantial financial penalties may be imposed as part of the DPA to reflect the seriousness of the offence and deter future misconduct.
5. Public Disclosure: The terms of the DPA, including the nature of the offence and remedial actions taken, will be made public to ensure transparency and maintain public trust.

THE GUIDANCE ISSUED BY THE AG TO DATE IS HERE

• AG's DPA guidance – 3 MARCH 2023
• https://www.gov.je/SiteCollectionDocuments/Crime%20and%20justice/AG%27s%20DPA%20Guidance.pdf
• Independent Monitor Application Notice
• https://www.gov.je/SiteCollectionDocuments/Crime and justice/Independent Monitor Application Notice.pdf
• Variation of the AG’s guidance on DPA– issued April 2025
• https://www.gov.je/SiteCollectionDocuments/Crime and justice/Independent Monitor Application Notice.pdf
• Annexe A DPA’s: financial penalty methodology – issued April 2025
• https://www.gov.je/SiteCollectionDocuments/Government%20and%20administration/Annex%20A%20Deferred%20prosecution%20agreements%20%20financial%20penalty%20methodology.pdf

Crown Advocate Sam Brown spoke for 1 HOUR - My (Mathew Beale, Comsure) notes on key issues (these are not the full training events and represent my key highlights) from the event are below

Overview

• DPA Negotiations & Jersey Regime: Jersey's DPA framework is nascent vs. the UK. ECU 2025 profile: international scope, intricate scenarios → cross-jurisdictional collaboration crucial; DPA underlines jurisdictional impact, asset recovery potential (in-depth with multidisciplinary approach).
• Corporate Criminal Liability Update: Economic Crime & Corporate Transparency Act introduces senior manager liability. Compliance officers → potential corporate liability. Jersey DPA requires self-reporting, must meet evidence-based standards → necessary agreement on facts for entry into the DPA process.
• DPA Process Oversight: Royal Court oversees DPA terms, ensuring fairness. Non-compliance → prosecution reinstated. A court-approved independent monitor is required for compliance checks. Added protections for self-incrimination within DPA and established collateral use limits.
• Recent Developments & Case Law: April 2025 guidance updates on penalty calculations; the AFEX case impacts assessments. Controversy exists on naming individuals in DPAs; for fairness, Jersey allows discretion to delay naming. AFEX Offshore clarifies DPA discounting → Exceptional cooperation is needed for beyond-standard discounts.
• Self-Reporting Incentives: New SFO guidance promotes quick self-reporting for expedited DPA negotiations, which reduces the likelihood of prosecution.
• https://www.gov.uk/government/news/sfo-sets-out-route-for-businesses-to-avoid-prosecution

Jersey recovers costs from self-reporting entities, relieving authority burdens. The Attorney General emphasises DPA advantages for employees and continuity in business.

Notes

Overview of DPA Negotiations and Jersey Regime 

• Introduction to Deferred Prosecution Agreements (DPAs) under Jersey law, highlighting their complexity and evolving nature.
• Jersey's DPA regime is relatively new compared to England and other jurisdictions.
• ECU case profile for 2025 shows a diverse, international scope requiring cross-jurisdictional cooperation.
• Jersey's operating protocol is multidisciplinary, involving investigators, lawyers, and compliance functions.
• Core characteristics of ECU cases: jurisdictional impact beyond Jersey, complexity, asset recovery prospects, and high-level offenders.
• International standards emphasise effective, proportionate sanctions against natural and legal persons.
• Alternative measures to prosecution include civil forfeiture, DPAs, and failure to prevent money laundering.

Corporate Criminal Liability and Legislative Changes 

• Challenges in attributing criminal liability to corporations led to alternative measures like DPAS and 'failure to prevent' offences.
• Recent UK legislation (Economic Crime and Corporate Transparency Act) introduces senior manager liability for corporate offences.
• Senior managers, including compliance and strategic officers, can now trigger corporate liability for a broader range of offences.
• Jersey law requires self-reporting as an essential entry point for DPAs, applying only to corporates and specific economic crimes.
• Self-report must meet a minimum evidentiary standard and be well-organised; an agreed statement of facts is mandatory for the DPA process.

DPA Process, Court Oversight, and Independent Monitoring 

• Royal Court supervises DPA approval, ensuring fair, reasonable, and proportionate terms.
• DPAs suspend prosecution; breach or failure to agree can lead to prosecution resuming.
• Jersey regime mandates an independent monitor (court-approved) with statutory powers to ensure compliance, including compelling evidence and reporting misconduct.
• Mandatory DPA terms: payment of costs, compensation, compliance programs, and payment for the monitor.
• Protections for self-incrimination and use of compelled evidence are in place, with restrictions on collateral use if DPA fails.

Recent Developments, Guidance Updates, and Case Law 

• Updated April 2025 guidance covers financial penalty calculation and treatment of individuals in DPAs.
• AFEX case influences transparent penalty calculation; entities are informed how penalties are assessed.
• Naming individuals in DPAS is controversial; Jersey guidance allows postponement or withholding of names to prevent injustice, subject to court discretion.
• Case study: Geraup Systems Ltd. DPA breach proceedings highlight differences between Jersey and UK law regarding contract application to DPAs.
• AFEX Offshore case clarifies that there is no automatic DPA discount in Jersey beyond the standard guilty plea discount unless exceptional cooperation is demonstrated