Instead of a prosecution and trial, the corporation agrees to disgorge any gains and pay additional penalties. It promises future good behaviour including, often, assisting prosecutors to investigate others. A prosecution is deferred pending fulfilment of these commitments. There have been five such DPAs so far, all proposed by the Serious Fraud Office (SFO) and approved of by the courts. The most recent, involving Serco Geographix Ltd, was issued last month (Serious Fraud Office v Serco Geographix Ltd, Southwark Crown Court 04/07/2019, (William Davis J)).
At present, DPAs can apply to corporate bodies only, but not to individuals. The best explanation for this is pragmatism: it can be very difficult to prosecute a company for serious crime, in particular where, under the identity principle, a “directing mind and will” of the company must be proven to have the relevant mens rea (Tesco Stores Ltd v Nattrass [1972] AC 153). Indeed, the choice of respondent in the Serco matter seems to have been determined by the evidence as to ‘directing mind’.
Supporters of DPAs, including the authors, would say that, in the present legal and economic climate, DPAs represent a reasonable compromise between the objectives of retribution for criminality and certainty of outcome. After all, half a loaf is better than none. DPAs achieve a degree of accountability for corporate crime which hardly existed in the past. They also mitigate the negative externalities generated by corporate convictions, such as disqualification from contracts, insolvency, redundancies and lost taxes.
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