My Lords, in providing for a code of practice for prosecutors in relation to deferred prosecution agreements, the Government have sought to ensure consistency with other statutory provisions relating to guidance for prosecutors on operational matters. As I have said before, the scheme for DPAs is a new concept for our criminal justice system and as such does not fall within the scope of any existing guidance for prosecutors.
I will turn to specific amendments and refer first to Amendment 30. The Government consider that there should be a code for DPAs comparable to the code for Crown prosecutors issued by the DPP under Section 10 of the Prosecution of Offences Act 1985. The code for Crown prosecutors sets out the general principles that prosecutors should follow when undertaking their functions. My noble friend Lady Hamwee referred to paragraph 6(1)(a) of Schedule 17, which reflects Section 10 of the Prosecution of Offences Act 1985 as to the general nature of the guidance to be set out in the code of practice for DPAs. However, unlike Section 10 of the Prosecution of Offences Act, paragraph 6 of Schedule 17 sets out in further detail the matters that must be covered in the code of practice for DPAs. Let me be clear: the key elements of DPAs are clearly set out in the Bill. The code of practice will provide guidance to prosecutors on the exercise of their discretion on operational matters. As such, the code is fundamentally an operational document and seeks to preserve prosecutorial discretion in operational matters. This approach will ensure that the code provides guidance in relation to key procedural matters for DPAs and decisions to be made by prosecutors.
Amendment 31 would add to paragraph 6 a further matter on which the code of practice may give guidance by adding to the list, as the noble and learned Lord, Lord Goldsmith, said,
“the choice of expiry date for a DPA”.
The Government’s view is that paragraph 6(2) is already clear that the code may give guidance on any relevant matter. If prosecutors consider it necessary and desirable to have guidance on the duration and expiry of an agreement, they would have the power to issue such guidance under that paragraph. We do not therefore see any particular or specific need to highlight this issue, although, again, the points of the noble and learned Lord, Lord Goldsmith, have been noted on this matter.
Amendments 31A and 31B seek to make the DPA code of practice for prosecutors subject to the affirmative resolution procedure. The noble Lord, Lord Beecham, referred to the letter issued by my noble friend Lord McNally. He is correct that the fundamental principle of prosecutorial independence means that it is appropriate for the code to be issued by the DPP and the director of the Serious Fraud Office. The code is an operational document, as I have already said. As such, we do not
consider that it is either necessary or appropriate to make this code subject to parliamentary scrutiny. This approach is consistent with that under Section 10 of the Prosecution of Offences Act 1985 in respect of the code for Crown prosecutors. I should add that a supplementary delegated powers memorandum has been provided to the Delegated Powers and Regulatory Reform Committee, which has not raised any concerns about the approach taken in Schedule 17.
Amendment 32, referred to by my noble friend Lady Hamwee, relates to the duty on prosecutors to take account of the code of practice for DPAs when exercising functions under Schedule 17. It is essential that there is transparency and consistency in the way DPAs operate. The code of practice will play an important part in meeting these requirements. Requiring prosecutors to “take account of” the code throughout the deferred prosecution agreement process will ensure that it is considered and applied in relation to making decisions and exercising functions. Parties to the agreement, the judge and the public can be confident that each agreement will be approached and made in a consistent manner. We do not consider that requiring a prosecutor to “have regard to” rather than “take account of” the code would make any material difference to the extent of its use by the prosecutor.
In conclusion, there is a strong case for ensuring parity between the legislation providing for the deferred prosecution agreement code of practice and the code of practice for Crown prosecutors issued under the Prosecution of Offences Act 1985. I hope that, in light of the explanations I have given, my noble friend Lady Hamwee, the noble and learned Lord, Lord Goldsmith, and the noble Lord, Lord Beecham, will agree not to press their amendments at this time.