Deferred Prosecution Agreements in England & Wales: Castles Made of Sand?

[2020] Public Law 307-330

20 Pages Posted: 13 Apr 2020

See all articles by Colin King

Colin King

Institute of Advanced Legal Studies, University of London

Nicholas Lord

University of Manchester

Date Written: March 17, 2020

Abstract

Negotiated settlements are increasingly regarded as an alternative tool against corporate criminality, with numerous countries now embracing such settlements. In England and Wales, amidst concerns relating to corporate criminal liability, the government introduced deferred prosecution agreements (DPAs) in 2014. Five years on from their introduction in England and Wales, it is timely to re-examine the DPA regime, not least given its influence on developments in other jurisdictions.

This article examines three key aspects of the development of the DPA regime to date, that, we argue, have resulted in a weak foundational basis for the regime notwithstanding its robust legal framework. Specifically, we explore: whether a DPA is in the public interest; the requirement of self-reporting; and the terms of a DPA. Even though there are admittedly only five Agreements to date, it is nonetheless useful to reflect upon the lessons to be learnt from these infant years. While DPAs were enacted to overcome obstacles to prosecuting companies and they have been widely lauded, we are not convinced by such contentions. The argument advanced in this article is that practice has been haphazard, rather than tied to any core principles, and lacks a clear underlying purpose. This situation is particularly evident in the three areas discussed in this article, which leads to the conclusion that the DPA regime stands on shaky foundations.

Keywords: corporate crime; deferred prosecution agreement; self-reporting; public interest

JEL Classification: K10; K14; K20; K22; K23; K19; K40; K42; M10; M14; M38; N00; N01; N20; N40; P16; P17P P37; Z18

Suggested Citation

King, Colin and Lord, Nicholas, Deferred Prosecution Agreements in England & Wales: Castles Made of Sand? (March 17, 2020). [2020] Public Law 307-330, Available at SSRN: https://ssrn.com/abstract=3555941

Colin King (Contact Author)

Institute of Advanced Legal Studies, University of London ( email )

Charles Clore House
17 Russell Square
London, WC1B 5DR
United Kingdom

Nicholas Lord

University of Manchester

Oxford Road
Manchester, M13 9PL
United Kingdom

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