Bribery Act & Proceeds of Crime - Written by on Sunday, October 23, 2011 3:26 - 0 Comments

Key questions posed by Solicitor General & SFO in Deferred Prosecution Agreement proposal & consultation so far

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At our meeting last week on Monday (reported here) the Solicitor General, Edward Garnier QC MP pictured left, and the Director of the Serious Fraud Office, Richard Alderman, highlighted to us several areas of importance they have already identified as needing to be addressed in any DPA legislation.

The Solicitor General has agreed to outline some of these areas so that our readers can start to consider the implications and identify both problems and, importantly, solutions.

The Solicitor General and the SFO are seeking views on these areas, and others which they may not have considered, from interested parties and invite submissions.

We have agreed to submit observations on readers behalf anonymously if this approach is preferred.

If you would like to use this facility then please pass to us details of your observations during the currency of the present informal consultation before any formal government consultation process is commenced.

Our view

We are certain that proposed DPA legislation is essential for corporate UK.

The lack of an effective mechanism is a serious defect in our law.

The consequences of not having Deferred Prosecution Agreements are many: they range from; causing a bias towards non-disclosure to the SFO (as all there is available in cases which merit criminal enforcement is a criminal prosecution to conviction with all the attendant fall out and cost to the company) to; forum shopping, with a bias towards the US where a DPA with the DoJ gives a company a formidable double jeopardy argument against proceedings in the UK.

One step at a time

Some argue that at the same time as in putting in place a Deferred Prosecution Agreement regime in the UK we should try to ensure that it is part of a more internationally agreed framework.

We agree this should be a long term objective.  However, in our view, lofty international ambitions should not get in the way of fixing the immediate problems the UK faces absent a Deferred Prosecution Agreement solution.

The first objective must be to get this right for the UK – to do that DPA legislation must fit within our statutes and procedures – fine tuning on international relations must come later.

Some of the key issues flagged by the Solicitor General & SFO

What should be the threshold test to be applied to the facts as known by the SFO to warrant  prosecutors engaging in DPA discussions with a company under investigation? Should it be what is known as the ‘Full Code Test’ (as set out in the Code for Crown Prosecutors), which requires assessment of evidence and the public interest and a decision that there is sufficient admissible evidence to provide a reasonable prospect of conviction) or is the SFO entitled to rely upon an admission of a corporate as the best evidence of culpability and proceed from there?

Is it widely agreed that the early  hearings and the materials presented and discussed at those hearings before the Judge dealing with a possible DPA should be viewed as confidential? In the event of a failure to reach agreement or a refusal by the Judge to allow a DPA would all communication and facts disclosed be inadmissible in any trial?

Is there wide agreement for the proposition that in the context of a DPA the SFO should if they feel able, join with the defence in urging the Judge to accept all or certain terms of a proposed DPA?

Should the proceedings in relation to DPA’s be conducted by High Court  Judges only, Crown Court Judges with wide fraud experience or be open to be dealt with by all Judges of the Crown Court.

In conclusion as you will have gathered we strongly support this initiative from the Minister and Government. It is necessary  to address the problems which have been identified by the courts and innovative in its approach.

From our own contacts we know that companies in the UK are anxious that the DPA sentence option is put into place.

As the Bribery Act comes on stream in terms of prosecutions it is vital that the impetus for much needed reform is not lost.

Image © Crown Copyright 2011

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