US-style deals to defer prosecutions for offences such as corporate bribery will be transparent and supervised by a judge under a code of practice for prosecutors published today.
Deferred prosecutions, under which a prosecution for corporate crime is suspended in return for a promise of good behaviour and a possible fine, are likely to be introduced next year under a provision of the Crime and Courts Act 2013.
Supporters of deferred prosecution agreements (DPAs) say the deals encourage self-reporting of corporate misdeeds and save money on lengthy prosecutions. However critics raise concerns about transparency - and send the signal that corporations receive gentler treatment than individual offenders.
The draft code of practice for prosecutors published today by the Serious Fraud Office and Director of Public Prosecutions attempts to allay some of the concerns, while bringing the use of DPAs closer.
Barry Vitou, partner at City firm Pinsent Masons, said the code ‘underscores the UK commitment to deferred prosecution agreements and the continued criminalisation of corporate law’.
Under the code, an invitation to negotiate a DPA ‘is a matter for the prosecutor’s discretion’.
Decisions to defer prosecutions must meet two tests, first that there is sufficient evidence to convict, or ‘at least a reasonable suspicion that the commercial organisation has committed the offence, and there are reasonable grounds for believing that a continued investigation would provide further evidence within a reasonable period of time’.
Deferrals must also meet a public interest test, the guidelines say.
‘A prosecution will usually take place unless there are public interest factors against prosecution which clearly outweigh those tending in favour of prosecution.’
Public interest tests against prosecution include where there the offending management has taken ‘a genuinely proactive approach’ to reporting and remedying the matter, ‘including the compensation of victims’.
While the guidelines say deferrals must be subject to judicial oversight, they concede that in when a court approves a DPA a private hearing ‘is likely to be almost always necessary’ because of uncertainty to the outcome.
‘For the parties to make an application in open court which was refused might lead to the uncertainties and destabilisation that private preliminary hearings are designed to avoid.’
On transparency, the guidelines require prosecutors to ensure that a full and accurate record of negotiations is prepared and retained. ‘Meetings between the parties should be minuted and the minutes agreed and signed.’
Vitou added: 'Two areas worth mentioning in particular are first, the reference to the continued use of civil recovery orders in circumstances where there is insufficient evidence for a deferred prosecution agreement. Some commentators thought that DPAs would strike the death knell for civil recovery. Not so.
'Second, there is no mention of the provision for protection of legal privilege. This was something trailed in the DPA consultation as being contained in the code. Otherwise, the publication of the draft code is in line with DPAs becoming a reality early next year.'
The consultation closes on 20 September.