Taking a Leap of Faith: Deferred Prosecution Agreements and Corporate Sentencing Guidelines Come to the UK

On 24 February 2014, UK prosecutors gained the ability to use deferred prosecution agreements (DPAs) in corporate crime cases. This followed the publication on 31 January 2014 of a Definitive Guideline for the sentencing of corporate offenders for fraud, bribery, and money laundering offences by the Sentencing Council (the Definitive Guideline). The DPA process and Definitive Guideline share a number of elements in common with their US counterparts, which have been used to achieve record enforcement of US transnational bribery laws. Despite the fact that the Code of Practice issued by the SFO and CPS in early 2014 for the use of DPAs and Guideline statements are intended to bring greater transparency to the resolution of misconduct by corporates, and ideally to encourage cooperation and voluntary disclosures, they fail to bring sufficient reliability and predictability to the process. Ultimately, they likely ask companies to put too much faithin the discretion of the prosecutors and the courts to be effective. Until UK practice is established, this uncertainty may put many corporates off.

Deferred Prosecution Agreements and the Code of Practice -

DPAs were introduced in the UK pursuant to the Crimes and Court Act of 2013, subsequent to Thomas LJ’s finding in R v. Innospec Ltd. in 2010 that the SFO lacked the authority to negotiate a financial penalty with a corporate in a criminal case. The development of DPAs and the Definitive Guideline also followed the sharp criticism of UK settlement actions by the Organisation for Economic Cooperation and Development (OECD) in 2012, which raised significant concerns about the lack of transparency and consistency in UK criminal and civil settlements in transnational bribery cases...

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