Prosecuting serious and complex economic crime in the UK is difficult. Investigations and prosecutions are long, expensive and resource-intensive. Too few companies are ever held to account for their crimes. By the time we are ready to prosecute in this jurisdiction, those businesses which have an international presence, particularly in the US, have often reached settlements with overseas authorities which shut us out from taking action here.
This cannot be right, and it is unfair to those in the UK who may have been adversely affected by these crimes.
The attorney general and I are accountable to parliament and superintend the work of the Serious Fraud Office and the Crown Prosecution Service. These two independent prosecuting authorities will continue to play their part in the renewed fight to tackle economic crime in the future. But we need to consider whether they need new tools that are more effective in the modern world.
Prosecution can have a destabilising effect on a company. It is sometimes a blunt response. It often also causes collateral damage: companies are not people, but the effect of a prosecution can be felt by employees, pensioners and shareholders who have played no part in the crime as much as by the directors. Arthur Andersen’s collapse in 2002 demonstrated that all too vividly.
Of course there will be circumstances where the criminal conduct is so serious that only a full investigation and prosecution is the appropriate response. But if a company is prepared to face up to its wrong-doing and accept punishment for it in a way that does not require a full-scale investigation and prosecution, there is surely merit in considering how to achieve justice in another way.
The introduction of deferred prosecution agreements (DPAs), similar to those in the US, would provide a more effective approach to dealing with corporate crime in some cases. The attorney general and I are currently engaging with the Ministry of Justice, the Home Office and others in order thoroughly to explore the question.
DPAs are an established part of the US response to corporate crime, encouraging companies to self-report to the Department of Justice. The DoJ typically agrees with a company to suspend or ‘defer’ any prosecution in return for payment of a substantial financial penalty, payment of compensation to victims and the imposition of a regime of corporate monitoring (at the company’s expense) for a period of two or three years.
These are the usual terms of the agreement, but there may be others allowing the prosecutor to keep its flexibility about what is required. If the company complies, the prosecution is eventually dropped at the end of the period. The Treasury benefits, the company can start again and the deterrent effect is significant.
This is not a plea bargain. We do not have plea bargaining here in the sense that that phrase is commonly understood. In serious or complex crimes there can be ‘plea discussions’ which have to take place within a strict framework, set out in the attorney general’s Guidelines on Plea Discussions in Cases of Serious or Complex Fraud.
We are clear that as we open up a dialogue about DPAs here, we will do so fully informed of the advantages and disadvantages of the American system. We will ask the judiciary to ensure that any new arrangements will work in the interests of justice. DPAs here will be part of the criminal justice system and will be policed and controlled by the judiciary.
We will also need to consider carefully the balance between the need of companies to be able to discuss their options confidentially with prosecutors, and the need for justice to be seen to be done.
Parties must have space and time to negotiate but, at the same time, there can be no cosy deals behind closed doors.
We are still at an early stage; there is much to discuss and there will be many differing views. And if there is a consensus in favour, a regime for DPAs will still require legislation to be passed in a crowded parliamentary schedule against competing priorities and pressures on parliamentary time. This will not happen by Christmas, but if we get it right it will be worth the work. Change is coming; let us ensure we achieve the right sort of change.
Edward Garnier QC MP is solicitor general