My Lords, I shall speak also to Amendments 35, 45, 46 and 47. These amendments would broadly remove the restriction of deferred prosecution agreements—DPAs—to corporate bodies, partnerships and unincorporated associations by permitting DPAs to be entered into with individuals and would instead restrict DPAs to cases where a sentence of imprisonment would not be likely on a guilty plea. The later amendments in my name, along with the amendment in the name of the noble and learned Lord, Lord Goldsmith, would widen the offences for which DPAs might in future be permitted beyond the range of financial or economic crimes.
To put these amendments in context, I welcome the innovation represented by the introduction of DPAs into this country by this Bill for two principal reasons. First, they are an effective device to ensure that criminal behaviour—sometimes very complex criminal behaviour—is met by a sanction. The compulsory imposition of a financial penalty, which is the subject of an amendment in my name in the next group, would ensure that that was the case. They bring about a saving of trials which in this country are, and have been, notoriously uncertain of outcome, as well as extremely expensive, so that they have used up a very large part of the criminal justice system’s overall budget. Secondly, they offer an opportunity for prosecutors to agree a programme of compliance requirements with offenders, and thus offer a chance to change behaviour, so they are part of the toolkit of the rehabilitation revolution, about which we have heard so much in the context of the Bill.
DPAs are for use only in suitable cases. It is important to avoid the worst excesses of such arrangements in the United States where it has been said that they have been used as the rich man’s route to plea bargaining. I suggest that they can and should be used to achieve voluntary compliance in the future with the requirements of the law across a range of fields. The limit on that is that it should not be acceptable for DPAs to be agreed where otherwise a sentence of imprisonment would be appropriate.
It follows that Amendment 23 removes the requirement that a DPA may not be agreed with an individual. In support of that amendment, I ask rhetorically the question, why the distinction? Why should it be that a criminal offence by a corporation, a partnership or an unincorporated association should be treatable by a DPA, but not an offence by an individual? As I suggested in the Second Reading debate we had in Committee, the question is not whether an offender is an organisation or an individual but whether the nature of the offence is suitable for a DPA. The distinction has been drawn that an individual can be imprisoned and an organisation cannot. But I suggest that that distinction is artificial because it is of course possible to provide that DPAs will be entered into only in cases where imprisonment would be unlikely in the case of an individual.
At Second Reading, my noble friend Lord Phillips of Sudbury suggested to me that nothing in the Bill explicitly stated that DPAs were not appropriate for an offence warranting imprisonment. The answer is that in the Bill as it stands such a provision would be unnecessary because it applies only to corporations, partnerships and unincorporated associations. But if it were extended to individuals, I suggest that it would be necessary to make it clear that it was not to be seen as an alternative to imprisonment.
I quite take the point made by the noble and learned Lord, Lord Goldsmith, at Second Reading, that, because of the behaviour-changing arrangements that can be made in DPAs, they might in some circumstances be suitable for drugs offences and the like which would otherwise warrant a sentence of imprisonment. At this stage at any rate, with this very new procedure, I would be wary of introducing a system that could be seen as allowing offenders effectively to buy their way out of a sentence of imprisonment.
Hence, under Amendment 35, we confine DPAs to offences not warranting such a sentence even were the limit to individuals to be lifted. That would happen at the preliminary hearing where, on the application by a prosecutor for a declaration that a DPA might be appropriate, that would not be able to be granted were a sentence for imprisonment to be appropriate.
Amendments 45, 46 and 47 in my name and Amendment 44 in the name of the noble and learned Lord, Lord Goldsmith, concern the types of offences that might be made the subject of DPAs. The noble and learned Lord’s amendment would effectively allow the addition of any offence by removing the restriction to economic and financial crime. I should make it clear that my amendments are sample amendments only. They are not intended at all to be exhaustive and I have not attempted to conduct a trawl through the statute book to look for appropriate offences. They are intended to be probing and to give examples only of the way in which categories of offences might be usefully made broader.
Amendment 45 suggests that,
“a breach of regulations which is not punishable by imprisonment”,
taken at its broadest, might be an appropriate amendment. Amendment 46 deals with environmental offences under the Protection of the Environment Act. Some of those are punishable by imprisonment as well as by fines
but, were the restriction to be only to those offences which would not be likely to warrant a sentence of imprisonment, that would be appropriate.
Similarly, health and safety offences seem to me—as indeed they seemed to be to the noble and learned Lord, Lord Goldsmith, at Second Reading—to be an appropriate area for such broadening of the offences. I have some experience from practice of the way in which the Environment Agency operates in respect of cases of environmental pollution. In fact, it has been operating for some time on the basis that it will agree not to prosecute offenders in circumstances where the offenders agree to pay compensation to clean up pollution and to put in place with the Environment Agency programmes of compliance with legal requirements for the future. That system works well and I suggest that it could be extended on a formal basis, as is suggested in the schedule, far more widely.
I ask noble Lords to support these amendments, and for the Minister to consider taking them back and doing something with them.