Deferred prosecution agreements: at what price?

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Some UK observers have regarded the US approach to corporate crime with a mixture of disdain and envy. Disdain because relatively unsupervised out-of-court deals and plea bargains somehow smack of impropriety and unfair pressure — the unseemly intrusion of the marketplace into our fastidious court system. Envy because of the large sums of disgorged profits that have swollen state coffers from ‘deferred prosecution agreements’ (DPAs).

No doubt attracted by the huge sums that can be saved by avoiding contested trials, the government perceives practical advantages in the cheap and swift resolution of financial crime, and so has decided to import this prosecuting tool from across the pond, albeit adapted for use in the UK. This is no surprise given these austere times, the prohibitive cost of prosecuting financial crime and the limited incentive for companies to self-report given that plea agreements provide no certainty of outcome.

Against this background, Schedule 17 of the Crime and Courts Act 2013 has now been enacted. It introduces a framework for DPAs in the UK. Unlike its US cousin, the UK version requires active judicial consideration and approval of each DPA at every stage. Furthermore, fines and the confiscation of profit will not go straight to the prosecuting agency but rather to the government’s consolidated fund…

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