Deferred Prosecution Agreements in England & Wales: Castles Made of Sand?

Public Law, 2020, Apr, 307-330.
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. 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.

This article examines three key aspects of the development of the DPA regime to date, that, we argue, have resulted in a weak foundational basis for the regime notwithstanding its robust legal framework. Specifically, we explore: whether a DPA is in the public interest; the requirement of self-reporting; and the terms of a DPA. Even though there are admittedly only five Agreements to date, it is nonetheless useful to reflect upon the lessons to be learnt from these infant years. While DPAs were enacted to overcome obstacles to prosecuting companies and they have been widely lauded, we are not convinced by such contentions. The argument advanced in this article is that practice has been haphazard, rather than tied to any core principles, and lacks a clear underlying purpose. This situation is particularly evident in the three areas discussed in this article, which leads to the conclusion that the DPA regime stands on shaky foundations.