The debate now ongoing in the UK about whether Deferred
Prosecution Agreements (DPA) should be a tool available to prosecutors in the
Serious Fraud Office (SFO) and Crown Prosecutors is an important issue that
should be well reasoned and thoroughly vetted. However, from where I sit in the
US, I believe that the ability to enter into a DPA is a powerful tool that
advances the interests of prosecutors, the judiciary and the public. Based on
the reasons I will set out below, I believe that the UK should incorporate such
a tool into those mechanisms available to the SFO and Crown Prosecutors to
resolve cases brought under the Bribery Act.
The key issues that law makers in the UK must resolve is
how to incorporate the concept of a DPA into a system which only allows
prosecutors the option of bringing criminal charges or declining to do so
coupled with a judiciary system that has unfettered discretion to accept or
reject any settlement agreement brought before it. In an article entitled "The
US Model for Deferred and Non-Prosecution Agreements" Mike Volkov phrases
the question as "For UK policy makers, the balance between judicial review and
prosecutorial discretion is one which has to be resolved before any new policy
can be enacted."
The primary reason for both the prosecution and a company
which violates the Bribery Act entering into a DPA is certainty. The one thing
I learned in almost 20 years of trying cases in the US (civil side only) is
that nothing is certain when you leave the final decision to an ultimate trier
of fact who is not yourself, whether that trier of fact be a jury, judge or
arbitrator. The most important thing for a company is certainty and that is
even more paramount when a potential criminal conviction looms over its
corporate head. Certainty is equally critical for the prosecution. No matter
how 'slam dunk' the facts are, or appear to be, once a prosecutor turns over
the final decision in a case to another trier of fact; the prosecution has also
lost certainty in the final decision. Every corporate defendant which goes to
trial can and should raise all procedural and factual defenses available to it.
No prosecutor can ever be 100% certain that it will win every court ruling or
that a guilty conviction will be upheld on appeal.
However, a DPA can bring certainty. For a company
certainty in its rights and obligations, for the prosecution the same is true.
The key then is how to achieve this certainty through the judicial process
where the judicial system has other interests to protect. These interests
include the right of judicial review and protection of the public interest. The
key is how to reconcile these competing interests.
One of the suggestions in the Bribery Act debate on this
issue is to allow a judicial representative to be a part of the negotiations
between companies and prosecutors before a final DPA is agreed to by the
parties. The judicial representative could provide guidance on what might be
acceptable under a final judicial review when the DPA is submitted to a court
for acceptance and Entry of Judge. To forestall any claim of conflict of
interest, the reviewing court would be a different judge than the judge who
provided the guidance in the pre-court review stage.
However, I would not advocate such an approach for
several reasons. I believe that the judiciary has a different role which is to
ensure that laws are followed and administered justly and to safeguard that the
public interest is represented in any settlement which results in a DPA. For
one judicial representative to assist in the crafting of the DPA and another
judicial representative to rule upon the DPA demeans from this role. While not
enshrined in a written constitution as in the US, there is a distinction
between the prosecution, which is a function of the executive branch and the
judiciary, which is a function of the judicial branch. While the UK has a
different form of democracy than the US, parliamentary vs. representative
democracy, the executive and judicial functions remain separate and distinct.
Next, no matter how independent the final reviewing judge is, the fact that
another judge assisted in fashioning a DPA would factor into any judicial
analysis and usually a reviewing judge respects the rulings and decisions of
another judge, at least at the trial court level. This respect would most
probably continue in the court review of DPAs negotiated with the help of
another member of the bench.
Nevertheless, I still argue that DPAs still should play
an important role in the resolution of Bribery Act cases. However, I would not
urge early judicial involvement but that the key to certainty is transparency.
The transparency comes into play in the crafting of the DPA, which should
include a full analysis of the penalty to which the parties agreed to in the
DPA. Here guidance might be taken from the US Department of Justice's (DOJ)
approach to list out the factors and the attendant scoring in each DPA. This
scoring can go up or down depending on many factors which are now discussed in
each DPA. Further the underlying factors and scoring are based upon the US
Prosecutors Guidelines which are also publicly available.
It is through this transparency that a court can
determine if the law, here the Bribery Act, has been fairly or justly
administered. A court can then also use this transparency to ensure that the
interests of the British public are also properly taken into account. The fact
that the Bribery Act is a new law should not prevent a thorough analysis of
such factors. The prosecution can simply do what lawyers are trained to do;
review the prior law to provide guidance or look at other similar laws for
I understand the response that a DPA brought before a
court under such a scenario that I have listed above is still open to judicial
rejection. However, I believe that most courts will follow precedent, if such
precedent is used in a well-reasoned manner and presented logically to a court.
As for the argument that such an approach may well lead to higher fines or
greatly penalties being levied, I would respond that such higher fines or
greater penalties should have then been agreed to in the first place.
A DPA can be, and is, a powerful tool in the arsenal to
fight bribery and corruption. The US DOJ has used it successfully, I would
argue, for many years, to the benefit of the US public. I would also urge that
such a tool become available to the SFO and Crown Prosecutors in their fight
against bribery and corruption. However, the maintenance of judicial
independence is a key component of any democracy. This judicial independence
can continue in a manner consistent with the certainty brought by DPAs and court
oversight and approval through transparency.
This article originally appeared in thebriberyact.com.
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© Thomas R. Fox, 2011
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