The Test. In deciding whether to enter into a DPA, the prosecutor must apply a two-stage test. The two stages are the evidential stage and the public interest stage. When considering the public interest stage, the prosecution determines whether the public interest would be served by prosecution or by entering a DPA. The more serious the offence, the more likely a prosecution will be required in the public interest. Indicators of seriousness include not just the value of any gain or loss, but also the risk of harm to the public, unidentified victims, shareholders, employees and creditors and to the stability and integrity of financial markets and international trade. The impact of the offending in other countries, and not just the consequences in the U.K., should be taken into account. A variety of features may militate towards or away form prosecution, for example: • whether the company has a history of similar conduct; • whether the company had been warned before or if the relevant behavior was an isolated incident; • whether the organisation had an ineffective corporate compliance programme and whether there is a genuinely proactive and effective programme in place now; • whether the wrongdoing was reported within a reasonable time of the offending conduct coming to light and whether that reporting was full and xxxxx; • whether there was a genuinely proactive approach adopted by the corporate management team when the offending conduct was brought to their notice (such as self- reporting and remedial actions and the compensation of victims); and • whether the offense was recent in nature, and whether the company is, in its current form, effectively a different body to that which committed the offences. Full, xxxxx and early self-reporting and full cooperation with the relevant authorities will militate against a prosecution being brought. In Rolls Royce as well as the Standard Bank case, that was one of the main factors that influenced a DPA being available. The prosecution and organisation must agree to terms which are “fair, reasonable and proportionate.” This will of course vary from case to case and different terms will be appropriate in different circumstances. However typical terms will include: • the payment of substantial penalties; • making reparation to victims; • undertaking reform to prevent that type of conduct occurring again; and • submitting to regular reviews and monitoring.
The Test. Under the Normal Cost Ratio Test, the ratio of the unit credit normal cost for a new unit to the net expected con- tributions for the unit is calculated. The result obtained from this calculation is expressed as a percentage which is rounded to the nearest whole percentage. The unit passes the Normal Cost Ratio Test if the Trustees are satisfied, based on their review of the actuarial evaluation of the unit’s employee data, that the ratio of the unit credit normal cost for the unit to the net expected contributions for the unit will not exceed 80%. If the ratio is greater than 80%, then the unit does not pass the Normal Cost Ratio Test.
The Test. The “no net expense” policy contained in the Comprehensive Plan and set forth at Section 7.1 in the Level A Agreement provides: “Planned communities shall not be a net expense to the County. The “no net expense” policy is a mutual commitment to achieve the goal of a responsible balance of infrastructure costs, including construction, operation and maintenance, shared between the public and private sectors. The “no net expense” test is satisfied if the County’s on-site public expenditures and off-site public expenditures reasonably allocated to the Project have been, or will be, off-set by revenues and/or economic and fiscal benefits (direct, indirect and induced) from the Project.”
The Test. The Comprehensive Plan provides that planned communities 31 shall not be a net expense to the County. The “no net expense” policy is a mutual commitment 32 to achieve the goal of a responsible balance of infrastructure costs, including construction, 33 operation and maintenance, shared between the public and private sectors. The “no net expense” 34 test is satisfied if the County’s on-site public expenditures and off-site public expenditures 35 reasonably allocated to the Project have been, or will be, off-set by revenues and/or economic 36 and fiscal benefits (direct, indirect and induced) from the Project. 37
