My Lords, I welcome the proposals for deferred prosecution agreements in the proposed new schedule. They provide a comprehensive and workable code for a useful new procedure. The proposals are no worse for being an American import. Although I note the point of the noble Lord, Lord Beecham, that in America aggressive prosecutors may misuse such procedures, I do not believe the proposals in these amendments echo that danger.
These proposals are not dissimilar to procedures familiar in this jurisdiction over a number of years. Tax penalties, VAT penalties and customs penalties are examples of authorities not prosecuting when offences are committed but where the process of prosecution is replaced by the imposition of a penalty. Even the humble fixed penalty for motorists has its parallels.
The development these proposals introduce is a voluntary agreement to defer a prosecution where a company or a partnership is prepared to commit to payment of money to the prosecuting authority, to victims or to charity, to introduce compliance procedures and to co-operate in investigations.
The procedures are similar in many ways to the way in which the Environment Agency has operated over a number of years by enabling polluters to avoid prosecution for environmental offences by ensuring that offenders voluntarily clean up the pollution caused, pay any necessary compensation and introduce procedures in future to ensure compliance with the law. These
arrangements save large sums of money, avoid the uncertainty of prosecution, ensure future compliance and extract compensation for victims and the prosecuting authorities where appropriate.
I do not believe that there are parallels between these proposals and hugging hoodies, as the noble Lord, Lord Beecham, suggests. They establish a way of achieving the results to be gained from a successful prosecution, sometimes in exceedingly complex and difficult cases, without the costs and uncertainties of getting those results.
Of course the criticism may be made that DPAs amount to something akin to plea bargaining. In one sense that criticism is justified. However, the provision at paragraph 5(4) of the proposed new schedule—that the amount of any financial penalty agreed between the prosecutor and P, the offender, must be broadly comparable to the fine that a court would have imposed on P on conviction for the alleged offence following a guilty plea—goes much of the way towards answering that criticism. The two-stage arrangement proposed in the schedule also adds transparency and protection of the public to the proposals.
I have two points for consideration which may suggest that at this stage the proposals do not go far enough. Paragraph 4 of the schedule provides that P, the party entering into an agreement with the prosecuting authority, may not be an individual. I am not entirely clear why the distinction between individuals and corporations or partnerships needs to be drawn. It seems to me at first blush that it is the nature of the offence that is important, not the nature of the offender. I would suggest that the common threads running through cases suitable for DPAs are, first, the willingness of the offender to admit to guilt; secondly, the willingness to pay a financial penalty; thirdly, and perhaps of paramount importance, the suitability of a financial penalty and compliance measures to the facts of the case and to the seriousness of the offence; fourthly, a willingness to co-operate in an investigation of how the offences happened so as to assist the prosecuting authority in understanding the offences and in taking measures to avoid repetition; and finally, a willingness to put compliance measures in place on the part of the offender to ensure that there is no repetition of the offences. I would suggest that these conditions can be as easily met in the case of an individual offender as in the case of a corporation or partnership, even though DPAs would of course be more commonly suitable for corporations or partnerships.
It has been suggested that a distinction can be drawn between individuals and organisations from the self-evident fact that a corporation cannot be imprisoned. I am not sure that that answers the point. If an offence warrants a sentence of imprisonment—this is an important answer to some of the points made by the noble Lord, Lord Beecham—the prosecuting authority will not agree to a DPA in the first place, and that is whether the sentence is warranted for an individual or for the officers of a company in their individual capacity. So DPAs cannot be used where a sentence of imprisonment ought to be imposed, if a sensible prosecuting authority is in place and goes before a judge seeking permission to make such an exceptional agreement.