The law of corporate criminal liability does not reflect the 21st century commercial organisation. Offending in the area of economic crime is becoming increasingly sophisticated and often operates across different jurisdictions. This calls for increasingly close working with international law enforcement agencies. And this can be difficult to achieve.
The consultation paper therefore sets out proposals for an additional tool for prosecutors, the deferred prosecution agreement (DPA), to deal with serious economic crime committed by commercial organisations. The MOJ believes this proposal will overcome many of the current difficulties associated with prosecuting commercial organisations. Currently, commercial organisations have little incentive to self-report offending to investigating and prosecuting agencies, especially if such self-reporting may result in a criminal conviction and all that entails.
Under a DPA, the prosecutor would lay, but would not immediately proceed with, criminal charges pending successful compliance with agreed terms and conditions stated in the DPA. The terms and conditions might include:
- payment of a financial penalty;
- restitution for victims;
- disgorgement of the profits of wrongdoing; and
- measures to prevent future offending (a monitoring or reporting requirement).
These would be discussed and agreed between the parties and then placed before a judge for consideration and approval. Time limits would be attached to the terms and conditions so that compliance can be managed and it will be clear when the agreement should cease.
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