Deferred prosecution agreements in England and Wales: castles made of sand?

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. A DPA has been described as ‘a bargain under which the prosecutor undertakes not to proceed with the prosecution of a corporation for a fixed time in return for the defendant mending its ways and paying a financial penalty for the privilege.’ Similar powers are well established in some jurisdictions, particularly the US, and they have recently been introduced elsewhere too. For example, France introduced equivalent powers in 2016, namely the Judicial Convention of Public Interest. In 2019, French authorities issued Guidelines on this power, which are influenced by, inter alia, experiences from England and Wales. In 2018, both Singapore and Canada introduced DPAs directly influenced by experiences in England and Wales. Other countries are considering introducing DPAs, including Ireland. The Irish Law Reform Commission has proposed the introduction of DPAs based on the regime in England and Wales, rather than that in the US. Thus, 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.