Case For Deferred Prosecution Agreements

Introduction

The Deferred Prosecution Agreement (DPA) allows a prosecution of an organisation for fraud, bribery or economic crimes, to be suspended for some time if the organisation meets certain specified conditions. DPAs have been welcomed in the UK justice system by those who believe that these innovative measures will provide means to public prosecutors for proceeding against corporates (Lord, 2014a; Koehler, 2015). Traditionally, criminal prosecutions against corporates has been a difficult area for reasons that will be discussed in this essay. This essay argues that instead of weakening the enforcement of anti-bribery laws, DPAs provide means to enforce the laws in a way that is more effective against corporates.

Deferred Prosecution Agreement

A Deferred Prosecution Agreement (DPA) is an agreement between a defendant in a crime and the prosecutor, as per which the prosecutor agrees to grant amnesty to the defendant if the latter would fulfil the requirements of the DFA. The system is seen in the American justice system and can be equated to the non-prosecution agreement (Giudice, 2011, p. 361). The difference between DPA and non-prosecution agreement in American context is that the former have to be filed in the court and the latter do not have to be filed in the court (Giudice, 2011, p. 361). DPAs have mostly been used in cases involving corporate frauds, where the defendants have been allowed to pay fines, and implement corporate reforms in their companies and agree to cooperate with the investigation, in return of which the prosecutor agrees to a DPA (Giudice, 2011). The consideration of DPAs is allowed for corporate criminal offenses in the United States (United States Attorneys' Manual , 2008, Section 9-16.325). There has been a significant increase in the issuance of DPAs in the American system, with there being more than 65 DPAs issued by the federal prosecutors in the period between 2006 and 2008 (Barkow & Barkow, 2011, p. 4).

In the UK, DPAs are of a fairly new origin as compared to the United States, where DPAs have been issued for many decades. In the UK, DPAs were introduced by the

Crime and Courts Act 2013, Schedule 17. In the Schedule 17, DPA is defined as “an agreement between a designated prosecutor and a person (“P”) whom the prosecutor is considering prosecuting for an offence specified in Part 2 (the “alleged offence”).” Part 2 of the Crime and Courts Act 2013 contains a list of offences for which DPA may be issued. These offences include common law offences of conspiracy to defraud, and cheating the public revenue, as well as a range of statutory offences under different statutes.

Although, the DPA system seems to have been inspired by the system in the United States, there are significant differences in the major features of DPAs in the UK and the United States. In the UK, a DPA is an agreement that is made between prosecutor and an organisation, which faces prosecution and this agreement is reached under the supervision of a judge (Serious Fraud Office, 2019). The DPA allows prosecution to be suspended for some defined period of time, as per the agreement, if the organisation would meet the specified conditions under the DPA (Serious Fraud Office, 2019). DPAs are issued in cases where prosecution is for fraud, bribery and other economic crimes. An important feature of the DPA is that these apply to organisations and individuals can never receive deferred prosecution under the DPA (Serious Fraud Office, 2019). This is a significant difference between DPAs in the United States and UK as in the former, DPAs can be issued to individuals as well (Barkow & Barkow, 2011). Another key difference is that in the United States, there is little judicial involvement in the process for reaching agreement for DPA (Barkow & Barkow, 2011).

DPAs have gained acceptance in the UK because of certain features of the system. DPAs allows corporate bodies to make full reparation for criminal behaviour without incurring collateral damage such as winding up of the company, which can lead to unemployment of the company employees as well as loss to investors who are all innocent parties (Serious Fraud Office, 2019). The process of issuing DPAs involves supervision of a judge, which ensures that a fair and proportionate agreement that serves the interests of justice will be reached (Serious Fraud Office, 2019). DPAs are preferable to the companies as well as the prosecutors as lengthy and costly trials can be avoided (Serious Fraud Office, 2019). Unlike the DPAs in the United States, UK follows a system that is public, through the involvement of a judge. This ensures transparency in the system. This is an important difference between the UK and the United States, and one which provides a more robust system in the United States. The DPA regime in the United States has come under censure for its lack of judicial oversight and transparency. It has been considered that judges in the United States cannot assert effective oversight over mandates, whereas in the UK, the Crime and Courts Act 2013 provides for judicial review of DPAs and also specifies the conditions in which DPAs should be employed and the provisions that should be included in the DPAs (Arlen, 2016, p. 227).

The introduction of DPAs in the UK, has also been welcomed on grounds of practical considerations. Historically, there have been significant challenges for the prosecutors to bring successful cases against companies that were involved in serious economic or financial crimes (Grimes, et al., 2013, p. 1). These challenges included lack of resources with the prosecuting authorities to pursue complex investigations that were often an aspect of serious economic crimes (Grimes, et al., 2013). Another practical challenge or difficulty is the proving of criminal liability on the part of the organisation, especially in cases involving mens rea, such as, fraud (Grimes, et al., 2013, p. 1). It may be mentioned here that there have always been peculiar difficulties with respect to bringing corporations under the ambit of criminal law, and corporations have not conventionally been subjected to the scope of criminal law, until the early 20th century (Simpson, 2002, p. 1). Instead of the criminal law, corporations have generally been subjected to liability under the strict liability doctrine; therefore, criminal law has traditionally not been used with respect to corporations until the 20th century (Simpson, 2002, p. 1). Even so, with the inclusion of corporations within the ambit of criminal law, there have been the challenges that were mentioned earlier, with respect to prosecution of organisations (Grimes, et al., 2013).

Therefore, from the perspective of prosecution of companies, the introduction of DPAs may be considered to be appropriate. With the introduction of the DPAs, the challenges traditionally faced by the prosecutors have been responded to, as now the prosecution can approach a corporate organisation under suspicion of commission of serious economic or financial crimes, and under the supervision of a judge, enter into negotiations for reaching agreement on DPA, which will allow the prosecution to proceed against the corporate body falling short of conviction, but with the subjection to sanctions such as financial penalties and a period of monitoring by an approved third party (Grimes, et al., 2013).

As the DPAs are of recent origin in the UK, it is not possible to assess whether the system undermines the enforcement of anti-bribery laws in the UK. However, the literature on DPAs in other jurisdictions can give some material on the interaction between DPAs and anti-bribery laws and similar literature can be considered in the UK context as well.

In the United States, evidence suggests that since the Department of Justice allowed the use of DPAs and NPAs for the cases involving bribery in foreign jurisdictions in 2004, under the Foreign Corrupt Practices Act 1977 (FCPA 1977), there has been an increase in the prosecution of bribery related offences committed by companies in foreign jurisdictions, with DPAs being increasingly used for penalising the companies for these offences (Koehler, 2015). The Organisation of Economic Co-operation and Development (OECD) has also noted the efforts of the United States’ federal prosecutors under the FCPA 1977, and has noted that the “United States has investigated and prosecuted the most foreign bribery cases among the Parties to the Anti-Bribery Convention” (OECD, 2010, p. 63). However, Koehler (2015) notes that the OECD (2010) has considered the efficacy of the Department of Justice and the FCPA 1977 on the basis of the number of enforcement actions and the settlement amounts secured, whereas this does not clearly present the picture. Rather, as he notes:

“Approximately 85% of DOJ criminal FCPA enforcement actions business organizations over the past decade were secured through alternative resolution vehicles not subjected to any meaningful judicial scrutiny. Rather than praising the fruits of this dynamic, this dynamic is something to lament” (Koehler, 2015, p. 525).

The criticism that Koehler (2015) is particularly pointing at is the lack of judicial scrutiny which puts a doubt on the actual actions taken against the companies that were found to violate the FCPA 1977 and were involved in bribery in foreign jurisdictions. Without judicial scrutiny, it may be argued that it is difficult to say whether effective actions have been taken against the organisation or not. Koehler (2015) also points out that despite praising the United States’ record on prosecutions for bribery, OECD (2010) also noted that the impressive record is based on the DPAs and NPAs, which have led to a greater number of sanctions, but at the same time, these agreements are not subject to judicial scrutiny (OECD, 2010, p. 33). Therefore, what this amount to is the settlement of bribery related cases related to American organisations, without actual prosecutions or criminal sanctions, other than the settlement amount (Koehler, 2015, p. 525). Therefore, a strong criticism on the efficacy of the DPAs to implement bribery laws in the American context is made as follows:

“In short, the cheerleaders of increased FCPA enforcement seem to be focused on the quantity of enforcement (regardless of enforcement theory, regardless of resolution vehicle used, and regardless of outcome) rather than the quality of enforcement” (Koehler, 2015, p. 526).

The question that arises therefore, on the basis of the above analysis and its applicability to the DPAs in the UK, is whether DPAs really affect the quality of the enforcement action, and by extension, the efficacy of bribery legislation in the UK. In the case of the UK, this question may be answered in the negative because as opposed to the American regime, DPAs in the UK are made under the supervision of the court, therefore, the particular objections that arise with respect to DPAs in the United States, that is, these are made without judicial supervision and with lesser transparency, do not arise in the case of the UK. In the UK, statutory provisions on the DPAs ensure that the process is subject to judicial supervision and is public in nature.

Another question that may be raised with respect to DPAs and anti-bribery laws, is related to effectiveness of DPAs in strengthening the law or weakening the law. If DPAs can be shown to be effective in reducing bribery incidents or the sanctions under the DPA regime is seen to be effective enough to create a deterrent to bribery, then it may be argued that DPAs are a positive development for the implementation of anti-bribery laws. This is related more to actions of individuals than actions of the corporation or organisation, because bribery is an act of an individual placed within the organisation. Even though DPAs are not issued with relation to individuals as per the statutory provisions, a question does arise as to whether despite DPAs, actions are instituted against individuals who actually were involved in the criminal act of bribery.

Actions against individuals can create a deterrent effect and help change corporate behaviour because individual decision makers are being held to account. Therefore, the question arises as to how far the DPA regime impacts the actions against individual decision makers within the organisation that is subjected to the DPA. It may be argued that imposing corporate fines would not deter future actions in violations of anti-bribery law. While that may be plausible argument, it may also be noted that DPAs in the UK regime is not only related to corporate fines, but there are a host of other requirements that companies have to meet with under DPAs, including cooperating with the investigations, providing evidence for the involvement of the individual officers actions within the company, and agreeing to be monitored (Lord, 2014a, p. 112). As companies can be made to cooperate with respect to providing evidence against individuals, this may serve as a deterrent for individuals to not commit crimes like bribery for which their companies may have to provide evidence against them under DPAs.

One aspect of the DPAs is that these do not drop prosecution against the organisations, but merely defer prosecution for a period of time, within which the prosecution has to be satisfied that certain steps and measures are taken by the organisation to correct the issues that led to the prosecution in the first instance (Lord, 2013). In other words, DPAs may be used to create a situation in which the organisation has to make structural changes for the purpose of ensuring that the similar actions are not taken in the future by the company. DPAs are not just about imposition of corporate fines and go much beyond that and can lead to the improvement in corporate culture that led to the bribery instances. If the organisation is not able to meet the requirements of the DPAs, which may include the requirement for making such structural changes, then the prosecutor has the right to continue with the prosecution against the organisation (Lord, 2013). DPAs have been considered to be useful given the difficulties that prosecutors encounter in prosecuting companies (Lord, 2014a, p. 114).

Anti-Bribery laws

The Bribery Act 2010 was enacted to counter corruption in the UK and under this law, UK companies are required to maintain an anti-bribery approach for all its operations, within or outside the UK. The Bribery Act 2010 and its guidance came into force in 2011. There are four core offence types under the Bribery Act 2010, these being, bribing another person; taking bribes; bribing foreign public officials; and the failure of a commercial organisation to prevent bribery by someone associated with the organisation. The last of these is a unique offence which creates a strict liability for corporations, wherein companies are required to ensure that there are measures in place that can prevent people associated with them from bribing.

With the passage of the Bribery Act 2010, the OECD Anti-Bribery Convention was finally implemented by the UK, after a long period of time since the Convention was adopted by the OECD (Rose, 2012). The UK has been criticised for not implementing the provisions of the OECD Anti-Bribery Convention within a reasonable period of time and for taking more than 10 years to implement these provisions (Rose, 2012). The OECD Working Group on Bribery had also responded to this delay by the UK in implementing the OECD Anti-Bribery Convention (Rose, 2012). Therefore, the passage of Bribery Act 2010 itself is seen as a step towards bringing UK closer to the OECD standards on prosecution of bribery offence.

The UK Guidance on the Bribery Act 2010 does draw on the OECD guidance on prevention of bribery of foreign public officials by corporations or persons associated with them (Rose, 2012). It will be pertinent to discuss the OECD guidance on anti-bribery, as this will provide a context to understanding the background of anti-bribery law. The OECD’s Good Practice Guidance on Internal Controls, Ethics, and Compliance is relevant for putting down the best practices for internal structures within organisations for the purpose of strengthening the anti-bribery regime within the organisations (OECD, 2010). The OECD (2010) guidance aims at improving the effectiveness of internal controls and ethics set up by the organisations for anti-corruption. Most of these internal controls work towards preventing incidents of foreign bribery or bribery of foreign public officials by persons associated with corporations involved in international business transactions (OECD, 2010). The guidance of Bribery Act 2010 is similar to OECD (2010) and

relates to measures to be taken by companies for prevention of incidents involving bribery of foreign officials by associated persons (Ministry of Justice, 2011). The Bribery Act 2010 guidance on the strict liability offence by companies, is based on the premise that while it is a punishable offence for commercial organisations for failing to prevent persons associated with them from committing bribery on their behalf; it is still possible for the organisation to defend itself against charges of bribery if adequate procedures were in place to prevent bribing (Ministry of Justice, 2011). Therefore, Section 7 of the Bribery Act 2010 makes it a punishable offence for commercial organisations for failure to prevent associated persons from committing bribery on their behalf but allows them to defend themselves by showing that adequate procedures are in place to prevent bribing (Ministry of Justice, 2011).

The enforcement of the bribery laws in the UK is within the domain of the Serious Fraud Office. The anti-corruption enforcement in the UK is centralised and therefore, the only state agency with national jurisdiction is the Serious Fraud Office (Lord, 2014b). The Serious Fraud Office is assisted by other investigator agencies, however, the major portion of the responsibility with respect to investigation and prosecution is with the Serious Fraud Office. With respect to anti-bribery laws, the investigation into instances of bribery may also involve transnational investigations, which are expensive as they are resource extensive (Lord, 2014a). As bribery is an offence under the Bribery Act 2010, the enforcement is through criminal prosecutions, which are expensive and can be time-consuming (Lord, 2014a). The expensive nature of criminal prosecutions is due to the high costs of investigation as the prosecutor needs to meet the substantial evidential and procedural requirements in the criminal justice system (Lord, 2014a). Criminal prosecutions in large complex cases such as those that involve transnational corporations under anti-bribery laws may put the prosecutor and the corporations in a skewed equation because prosecutor may not have the kinds of funds to investigate and prosecute the cases effectively, while the corporations may have the economic capability to employ technical and expert legal teams. Due to this, one of the issues that comes up as a challenge to the Serious Fraud Office is that of possibilities of lowering the likelihood of convictions in cases of bribery involving corporations (Lord, 2014a, p. 24).

On the other hand, civil solutions to enforcement of bribery laws can be more cost effective. One of the reasons for this may be that corporations may be required to cover the costs of investigation under the civil solutions, which reduces the burden on the resources of the state authorities (Lord, 2014a). As compared to criminal prosecutions, which require a higher standard of evidentiary proof from the prosecutors and may see a lower rate of successful prosecutions, civil solutions may allow the prosecutorial authorities to conclude a higher number of cases as the burden of proof is lower in civil solutions and the higher standard of evidential and procedural requirements are not required to be met (Lord, 2014a, p. 24). In other words, there is a higher likelihood of successful outcome in civil solutions as compared to criminal prosecutions.

For the purpose of enforcement of anti-bribery laws, civil solutions may take several forms, such as, financial settlements and fines, restitution, and the covering of the investigatory and prosecutorial costs by the corporation being investigated itself (Lord, 2014a, p. 24). Lord (2014) reports an interview with a UK prosecutor, who says of civil solutions to bribery:

“...that doesn’t mean that they are any less criminal [companies that bribe compared to ‘conventional criminals’], it just means that you are trying to bring them to justice in a way that doesn’t sap all of your resource because obviously we are having our budgets cut quite drastically. So it is an extremely efficient way if they come to you and report and then correct the problem which is part of the solution, isn’t it” (Lord, 2014a, p. 25).

The above is an explanation of practical issues that are associated with prosecution of bribery cases against corporations and the benefits of civil solutions to enforcement of bribery laws in the UK. As the UK prosecutor notes using civil solutions to bribery law enforcement does not mean that those who have committed bribery have not committed a criminal offence or that companies are any less criminal than individuals. It merely means that when it comes to enforcing anti-bribery laws against corporations, it is more viable to apply civil solutions, which ensure that enforcement is done, but without straining the capacity of the Serious Fraud Office. Although not technically a prosecution, civil solutions like DPAs can allow prosecutors to take action and enforce the bribery law. Financial viability of the measures that can be taken to enforce the bribery law is of the essence because literature indicates that the current economic climate of the UK has influenced the adoption of cost-effective approaches, and this applies to the Serious Fraud Office as well, whose budget has been reduced to some extent in recent years (Lord, 2014a, p. 25). A focus on viable solutions to anti-bribery regulation in the UK has led to the adoption of ‘negotiated relationships’ between the regulators and organisations (Lord, 2014a). In this context, Haines has noted:

“This literature places the regulator within a broad governance framework where the enforcement of rules within narrow prescriptive frameworks is eschewed in preference for policy mixes, combining instruments, third-party actors, and enforcement regimes that collectively can both “push” and “pull” regulatees into a reflexive appreciation of the goals the regulator wants to achieve and lead them to act in a diligent manner to bring the goals to fruition” (Haines, 2011, pp. 118-119).

The negotiated relationships were focussed on self-regulation and ‘Hybrid mechanisms’ such as self-investigation, and these were a part of civil settlements, which the Serious Fraud Office considered to be ‘more effective and costing less’ and making the Serious Fraud Office stronger in enforcing the anti-bribery law (Lord, 2014a, p. 25). DPAs are a step forward within the domain of negotiated justice. However, there is a crucial difference between DPAs and the earlier mechanisms of negotiated relationships, in that DPAs allow Serious Fraud Office to “reinforce its prosecutorial role while continuing to shift towards ‘negotiated justice’” (Lord, 2014a, p. 25). Therefore, far from weakening the enforcement under anti-bribery laws, DPAs may lead to the strengthening of the enforcement of anti-bribery laws by providing innovative solutions to the prosecutors, in this case, the Serious Fraud Office through which actions can be taken against organisations under anti-bribery law.

The discussion in this section has linked the introduction of DPAs to the practical issues and problems that are faced by prosecutors when they investigate and prosecute companies under anti-bribery laws. To summarise this section, it may be reiterated that literature has consistently shown and noted the difficulties that are faced by prosecutors in complex and often transnational investigations into corporate misdeeds involving bribery. These difficulties are associated with the expensive nature of such investigations and prosecutions, and the higher standard of evidential and procedural requirements that the prosecutor needs to meet in order to successfully prosecute corporations for bribery offences. In the previous section, the essay had also discussed the utility of DPAs in allowing prosecutors to take action against the company by agreeing to defer prosecution for a specified period of time, within which period the prosecutors may satisfy themselves as to whether the organisations are meeting the requirements under the DPAs or not. This allows the prosecutors, like Serious Fraud Office, to ensure that the organisation is taking all steps necessary in order to ensure that similar incidents do not happen in future, while at the same time, the corporation will be required to pay fines or settlement amount. Compared to the lower success rates of criminal prosecutions in cases involving corporations and bribery offence, DPAs provide a better opportunity to ensure that some actions are taken against the corporation. The question is whether DPAs are watering down the enforcement of anti-bribery laws or not. This is discussed in the final section of this essay below.

Deferred Prosecution Agreements and enforcement of Anti-Bribery laws

The global financial crisis of 2008 brought to the forefront the issue of corporate governance within companies. The recovery by companies against negligent or corrupt directors or officers is important in this context. The Bribery Act 2010 sought to make companies liable for acts of corruption by associated persons on their behalf. However, even while criminal prosecutions of companies for economic crimes are rare, there is a likelihood that there will be fewer prosecutions. As Wan notes, “this is likely going to change with the introduction of deferred prosecution agreements in the UK Crime and Courts Act 2013, and the increase in fines for fraud, bribery and money laundering offences” (Wan, 2016, p. 228). It has even been argued that DPAs allow corporate criminals to “escape without consequences” and depict the soft approach of the prosecutors to corporate criminals (Nanda, 2010, p. 622). The major criticism against DPAs in this context is that these mechanisms allow corporate criminals and even executives of corporate organisations to escape appropriate penalties of laws by simply promising to not commit the offence in future and paying an amount of fine (Nanda, 2010).

It is therefore argued that under DPAs, companies can escape prosecution under Bribery Act 2010, if there is an agreement with the prosecutor and the organisation meets certain conditions.

Wan (2016) makes a good point when he notes that with the introduction of the DPAs, there may be a drop in the prosecutions under the Bribery Act 2010 as organisations will be able to enter into such agreements and escape prosecution. However, it may be argued that the question of enforcement or effectiveness of Bribery Act 2010 does not merely depend on prosecutions, but also through measures that can encourage anti-corruption cultural change or structural change within organisations. To that end, the use of DPAs can be effective enforcement mechanisms because these do not allow the corporations to escape liability for bribery offences. As there is not sufficient evidence on this point in the UK, due to the relative newness of the law, reference may be made to the literature in the United States as to how far DPAs have been effective in enforcing anti-bribery laws in that country.

In the United States, DPAs remain the standard method for settling major corporate crime investigations by the federal agencies (Xiao, 2013, p. 235). In 2009 alone, more than 1.45 billion U.S. dollars in fines and penalties were accrued through the application of DPAs and NPAs to corporations who had committed some economic offence (Xiao, 2013, p. 235). These numbers suggest the high fine or penalty amounts that are prescribed under the DPAs. These do not suggest going soft on those who have committed offences under anti-bribery laws or anti-corruption laws. Moreover, actual cases depict that the American federal prosecutors have been able to elicit the admittance of wrongdoing by the corporate actor engaged in misconduct, where such admittance “makes punishment appear more proportional to the crime committed” (Xiao, 2013, p. 247). In the UK, the absence of similar mechanisms have meant that for a long time, prosecutors were not able to take significant action against companies that were involved in bribery offences (Lord, 2014a; Lord, 2014b). This is not the say that prosecutors were not using negotiated relationships to counter the challenges faced by them in responding to corporate crime, but negotiated relationships were more to do with civil measures and compromised the prosecutorial ability of the Serious Fraud Office (Lord, 2014a). However, with the introduction of the deferred prosecution agreements, the Serious Fraud Office can balance prosecution with negotiated relationships, which is innovative and allows actions against wrongdoer companies. This could well be another way of enforcing the anti-bribery laws in the UK, rather than weakening the enforcement of such laws.

Conclusion

DPAs are useful measures for enforcing the anti-bribery laws in the UK. Prosecuting companies has traditionally been an uphill task for public prosecutors. Criminal prosecution against companies has been difficult due to the complexity of the cases, expenses involved in transnational investigations, and in prosecuting the companies. Moreover, corporate liability in mens rea offences has been a controversial area. These challenges have meant that prosecutors have generally found it difficult to prosecute companies for bribery offences and there has been a low rate of successful prosecutions in this area. The introduction of DPAs has therefore been a welcome step because through DPAs, prosecutors can get to make corporates agree to accept their wrongdoing and liability in exchange for suspension of prosecution proceedings for some time. During this period, the prosecutor can get the company to agree to certain requirements under a judge supervised process, which may include structural changes as well as cooperation with the investigations of the prosecutor against responsible persons within the organisation. This saves resources for the prosecutor as well as provides a way for the prosecutor to enforce the provisions of the anti- bribery laws. Therefore, instead of weakening the enforcement of anti-bribery laws, DPAs are a way of enforcing these laws.

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References

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