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The law of corporate criminal liability does not reflect the
21st century commercial organisation. Offending in the area of
economic crime is becoming increasingly sophisticated and often
operates across different jurisdictions. This calls for
increasingly close working with international law enforcement
agencies. And this can be difficult to achieve.
The consultation paper therefore sets out
proposals for an additional tool for prosecutors, the deferred
prosecution agreement (DPA), to deal with serious economic crime
committed by commercial organisations. The MOJ believes this
proposal will overcome many of the current difficulties associated
with prosecuting commercial organisations. Currently, commercial
organisations have little incentive to self-report offending to
investigating and prosecuting agencies, especially if such
self-reporting may result in a criminal conviction and all that
entails.
Under a DPA, the prosecutor would lay, but would
not immediately proceed with, criminal charges pending successful
compliance with agreed terms and conditions stated in the DPA. The
terms and conditions might include:
payment of a financial penalty;
restitution for victims;
disgorgement of the profits of wrongdoing; and
measures to prevent future offending (a monitoring or reporting
requirement).
These would be discussed and agreed between the
parties and then placed before a judge for consideration and
approval. Time limits would be attached to the terms and conditions
so that compliance can be managed and it will be clear when the
agreement should cease.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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