The Ministry of Justice yesterday initiated a consultation process following its proposal to introduce Deferred Prosecution Agreements (DPAs) in the United Kingdom as an enforcement tool to combat economic crimes by commercial organisations.
The Ministry of Justice stated that “The Coalition Government is committed to treating white collar and economic crime as seriously as other crime” and called for “increasingly close working with international law enforcement agencies”. The Bribery Act 2010, which came into force in July last year, was a key legislative step towards combating economic crime, and its introduction notably created new criminal liability for commercial organisations for failing to prevent bribery and for acts of bribery by persons ‘associated’ with the organisation.
Currently however, only a limited number of successful prosecutions (criminal or civil) result each year against commercial organisations. Commercial organisations also have little incentive to selfreport offences or to engage with UK investigating or prosecuting agencies.
In addition, there is a concern that organisations that could be prosecuted in both the US and the UK for cross-border offences, may choose to engage with US agencies. There are a number of reasons for that perception. Firstly, English law does not allow parties to be prosecuted again if they have already been convicted or acquitted of the same offence. Therefore, engaging with US authorities might bar prosecution in the UK (but not vice versa). Further, US agencies have a varied range of enforcement options, including non-prosecution agreements (NPAs) and DPAs, neither of which results in a criminal conviction. UK prosecution agencies currently have limited options for dealing with offending by commercial organisations.
The consultation paper released yesterday proposes the introduction of DPAs as an additional tool for prosecutors. Under a DPA, the prosecutor would lay, but would not immediately proceed with, criminal charges. The terms and conditions of a DPA (negotiated between the parties) might include payment of a financial penalty, restitution for victims, disgorgement of the profits of wrongdoing, and measures such as monitoring or reporting, intended to prevent future offending. A judge would have final approval of the DPA reached by agreement. If the commercial organisation did not successfully comply with agreed terms and conditions stated in the DPA, the government could subsequently prosecute.
The consultation process is aimed at members of the public, including the judiciary and legal practitioners, commercial organisations, service providers, users and other interested parties in England and Wales. Consultation is open from 17 May 2012 to 9 August 2012. The consultation paper can be found in full at the following link: DPA consultation paper.