deferred prosecution agreements for the uk October 23, 2012Posted by Bradley in : consultation , trackback
The UK Ministry of Justice announced that it would be introducing Deferred Prosecution Agreements in the UK. The announcement follows a consultation initiated in May 2012. The Government’s response to this consultation was published today. The Government’s response lists those who replied to the consultation but mostly characterizes the responses rather than identifying particular views with particular respondents. The responses (which are not available from the consultation page but some of which can be found online) raised some serious issues. Commenters raised questions about whether DPAs would tend to benefit larger commercial organizations rather than smaller firms which might be “softer targets” for criminal prosecutions (e.g. the Law Society’s response). Transparency International noted:
our concern that DPAs may be introduced primarily to provide an incentive to powerful companies who are not as resource constrained as prosecution agencies to settle cases at an earlier stage.
The Law Society pointed out that “the use of internal investigation material in subsequent investigations” would have human rights implications. The City of London Law Society Corporate Crime and Corruption Committee worried that the introduction of DPAs would prejudice junior employees. The Criminal Bar Association and Law Reform Committee of the General Council of the Bar of England and Wales suggested that there was insufficient evidence to determine whether DPAs were a good idea:
A proper review of the current regimes for dealing with economic crime should be conducted, addressing the different tools available to the prosecuting authorities and the degree to which they are working effectively. It is only then that the need for DPAs can be properly assessed and correctly structured to produce the best outcomes. Further, the use of DPAs in the United States also needs to be properly considered both with regard to its success in fighting serious financial crime and in bringing those responsible to justice.
Comments suggested that the consultation should have considered areas where regulators entered into negotiations with those subject to regulation. Jones Day wrote that the OFT’s experience with its leniency policy was relevant.
The Government reacted to the various responses in this way:
All told, we believe, and the consultation responses confirm, that the DPA model is a sensible and pragmatic means of identifying and penalising more corporate offenders. DPAs will help protect the public by tackling economic crime that currently too often goes without remedy.
But the comments that are readily available on line do not really seem to bear this out – they certainly do not establish conclusively that DPAs for the UK are the product of evidence-based policy-making. Moreover, the idea that transparency is identified as a critical component of the arrangements for DPAs in the context of a consultation which is not a model of transparency itself is a bit odd.