Deferred prosecutions and justice: a whodunnit?

Palmer, Alex and Ryder, Nicholas ORCID: https://orcid.org/0009-0008-8712-2946 2024. Deferred prosecutions and justice: a whodunnit? Langer, Máximo, McConville, Mike and Marsh, Luke, eds. Research Handbook on Plea Bargaining and Criminal Justice, Research Handbooks on Criminal Law and Justice Series, vol. 12. Cheltenham: Edward Elgar, pp. 245-262.

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Abstract

In the comic monologue The Lion and Albert, Albert’s mother declines the offer of compensation for the death of her son, preferring that those responsible be brought to justice. In the field of white-collar crime, ‘justice’ is a more challenging concept. Lord Hewart CJ remarked almost a century ago that ‘justice should not only be done, but should manifestly and undoubtedly be seen to be done’. Two decades later, Sutherland defined white-collar crime as ‘a crime committed by a person of respectability and high social status in the course of his occupation’. Half a century later, Clarkson concluded that ‘it is the individuals within the company that are most amenable to deterrence and that in order to deter a company the fines would need to be massive. A company will only be deterred if its expected costs exceed its expected gains.’ There is a general expectation that those responsible for corporate crime will be brought to justice. However, contemporary trends in white-collar crime favour financial regulation and/or settlements ‘negotiated’ with prosecutors over prosecutions. In addition to criminal law, many firms and individuals in the United Kingdom (UK) are subject to supervision by a statutory independent regulator, the Financial Conduct Authority (FCA). A key feature of the FCA is its ability to levy its own regulatory fines without having to apply to a court. Criminal prosecutions, generally, lie in the hands of a specialist prosecutor, the Serious Fraud Office (SFO). The SFO has the recent benefit of Deferred Prosecution Agreements (DPA). The DPA, a court-supervised process, enables the SFO to broker outcomes to a prosecution with a commercial undertaking rather than taking a case to trial. This follows the approach of the United States (US), long considered the international leader in tackling financial crime and now followed by other jurisdictions such as Australia, Canada and Argentina. This chapter considers the usage of DPAs, initially contrasting with the approach of the US and holding individuals to account.

Item Type:	Book Section
Status:	Published
Schools:	Cardiff Law & Politics Cardiff Centre for Crime, Law and Justice (CCLJ)
Subjects:	K Law > K Law (General)
Publisher:	Edward Elgar
ISBN:	9781802206661
Date of First Compliant Deposit:	24 May 2024
Last Modified:	02 Aug 2024 09:30
URI:	https://orca.cardiff.ac.uk/id/eprint/169142

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