Jonathan Fisher KC’s recently published report Fraud in the Digital Age covers much ground. Three proposals stand out for the debate they are likely to generate: a deferred prosecution agreement (DPA) regime for individuals; the redirection of DPA proceeds into the criminal justice system; and financial rewards for whistleblowers.
DPAs for individuals
DPAs in the UK are currently available only to corporates. Fisher recommends creating a separate, court-supervised deferred prosecution mechanism for directors, senior managers and other employees implicated in serious corporate economic crime cases (recommendation 39).
The reasoning is not hard to follow. The Serious Fraud Office has secured high-profile corporate DPAs with major corporations, including Rolls-Royce, Tesco and G4S, but has struggled to convert those corporate admissions into convictions against individuals. The G4S prosecution against three former executives was dropped after 10 years and the Serco case collapsed over disclosure failures. Fisher’s view is that DPAs risk becoming a shield for senior individuals at the corporate rather than a route to accountability. His proposed fix is to extend the mechanism to those individuals directly, with binding undertakings, such as management disqualification or serious crime prevention order-style restrictions, all subject to judicial oversight.
Fisher notes that extending the deferred prosecution regime to individuals was a proposal made in the 2025 Independent Review of Criminal Courts – albeit seemingly only in relation to minor offences, a distinction which is not drawn out.
The difficulty is what this proposal looks like from the outside. A corporate cannot go to prison; it can only be fined and/or debarred from bidding for public contracts. That is why a DPA regime for corporates is a coherent proposition. An individual can go to prison, and a scheme that lets some people negotiate their way out of that will draw obvious criticisms. First, that the wealthy will be able to buy their way out of jail; and second, that those who cannot afford to fight a case may feel pressured into an individual DPA simply because the alternative, a full trial process with an ever-lengthening wait from charge to verdict, is worse. Widening access to a mechanism designed for entities which do not have personal liberty at stake, and applying it to individuals who do, changes its character.
It is also worth noting what is missing from the justification. Unlike the new failure to prevent fraud offence, this does not appear to be a proposal requested by law enforcement. While it would give prosecutors another tool and would appear to align the individual and corporate regimes, even then it would only apply to certain individuals (directors and employees) for certain (economic crime) offences.
Reinvesting DPA proceeds
DPAs generate fines and disgorgement. Currently, these go into the Consolidated Fund and are absorbed into general Treasury revenue. Fisher recommends that proceeds of DPAs instead be injected into the criminal justice system, with a proportion ringfenced for economic crime enforcement (recommendation 40).
The figures make the case. The Rolls-Royce settlement alone generated over £239m in penalties and £258m in disgorgement in the UK; Tesco paid £129m; Airbus contributed over €980m in the UK. The report notes that the Tesco settlement alone was equivalent to 11% of the annual criminal legal aid budget. Reinvesting even a portion of money generated by enforcing economic crime law in the (underfunded) system that produced it, rather than treating it as general revenue, is highly appealing.
Paying whistleblowers
UK prosecutors, led by the SFO, have been asking for the power to financially reward whistleblowers. Fisher recommends legislation with a government consultation to design the scheme (recommendation 15). The proposal draws on US practice (the False Claims Act, the SEC and CFTC programmes, the IRS Whistleblower Office), where financial incentives have produced large numbers of tips and, in some cases, substantial recoveries.
Fisher also wants to tie this in with what amounts to a framework for a statutory whistleblowing regime: a new criminal offence for knowingly submitting false reports under the scheme (recommendation 16), a criminal offence for harassing or intimidating whistleblowers (recommendation 17), and an independent arbitration panel to hear whistleblower appeals and complaints (recommendation 18).
Rewarding whistleblowers addresses a genuine gap. The report cites evidence that UK whistleblowers avail themselves of US whistleblower programmes because there is no comparable domestic incentive. Protecting whistleblowers from retaliation and policing false reports are sensible safeguards for any reward scheme. An arbitration panel gives whistleblowers an independent avenue to resolve disputes. The open question is practical rather than principled. Where are the legislative time and funding for a criminal offence, an arbitration panel and a reward scheme going to come from, at a time when the criminal justice system is already stretched? The proceeds of DPAs, perhaps?
Common thread
These three proposals sit at different points on a spectrum from principled to expedient. The individual DPA proposal is the one that will need the clearest answer; the proposal to reinvest the proceeds of DPAs is relatively uncontroversial. The whistleblower package is sound in concept but resource-dependent. Is there the political will to grapple with the issues and engage with the recommendations? We shall see.
Chris Roberts is a partner and head of white-collar crime and investigations at Grosvenor Law, London
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