My Lords, I will be brief. In relation to Amendments 116A and 116B, after two debates in Committee and our meeting, I am still entirely unclear why the Bill as drafted contains only the all-or-nothing choice in relation to financial penalties. As the noble and learned Lord, Lord Goldsmith, pointed out, the arrangements proposed are that the financial penalty should be optional only, but if there is a financial penalty then it must be broadly comparable to the fine that would be imposed on a guilty plea. I suggest that that is illogical because there is no room for such a reduced financial penalty, and there is no reason why there should be no room for one.
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There are two possibilities that would be logical. The first is that we should have a compulsory financial penalty that would have to be broadly comparable to the fine that was imposed on a guilty plea. That would have the advantage that it would make it clear to the public that the offender was not escaping any part of his penalty by agreeing to a deferred prosecution agreement. However, it would have the corresponding
disadvantage that it would risk diminishing or removing the incentive for the offender to agree to the DPA, however desirable that might be from the public point of view. It would also have the disadvantage that it would not allow for impecuniosity on the part of the offender, and would introduce an undesirable element of inflexibility in the way that the requirements of the DPA might be calibrated in relation to compensation, donations to charity, the cost of compliance and so forth with the financial penalty, which might lead to a conclusion that a financial penalty should be attenuated.
The alternative is that there should be no positive requirement for a financial penalty but merely an option, as is proposed. In that case, either one would omit altogether the guidance regarding the level of the financial penalty, as the noble and learned Lord, Lord Goldsmith, proposes in Amendment 116A, or one would have a maximum, as he proposes in Amendment 116B. I am bound to say that I favour Amendment 116B because I consider it desirable that it should not appear to be open to an offender to buy himself out of prosecution by paying a greater penalty than he would have paid as a fine if he had pleaded guilty. Provision only for a maximum can allow for attenuation of the penalty, for the reasons that were discussed in relation to compensation, compliance costs and so forth. It is therefore my submission that Amendment 116B is the desirable of the logical options.
On Amendments 116C and 116D, I suggest that it is plainly sensible that the DPA should have to spell out the possible consequences of non-compliance. That is important in order to demonstrate to the public the seriousness of the agreement and to maintain public confidence. It is also important to demonstrate to the offender the possible consequences of non-compliance.
I will say a word on Amendment 116BA, which covers the Sentencing Council and was tabled by the noble Lords, Lord Beecham and Lord Rosser. I have some difficulty with this. The generality is that judges sentence according to guidelines. Parliament sets a maximum. That principle ought to be the same in relation to deferred prosecution agreements; some sort of guidelines should be available and the maximum should be set by reference to the comparable fine. However, circumstances of offences vary so widely that they do not lend themselves easily to debate by Parliament that descends to particularities. On that ground alone it seems to me that judges, when approving agreements—and prosecutors and offenders when entering into them—should take into account the nature of the offence, the other requirements that are to be agreed to as part of the DPA and the financial position of the offender. The need to do that means that the terms of the financial penalty and of the DPA generally must be sorted out case by case, which does not lend itself to parliamentary debate.