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 faith in the discretion of the prosecutors and the courts to be effective. Until UK practice is established, this uncertainty may put many corporates off.
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