Here’s an extract from the article:
“Recent commentary on DPAs have focussed on a few key themes: an alleged lack of judicial scrutiny in the approval hearings (apparently evident from the swiftness of the process); the fact that judgments have become progressively shorter; and the non-publication of hearing transcripts. Perhaps the real question is: “what has been scrutinised?”, to which the answer appears to be “whether the company should be avoiding prosecution or paying a bigger financial penalty given the agreed facts.” There has been no judicial consideration at all of whether the SoF is justified by the evidence, and in particular whether the evidence justified an agreed ‘fact’ that an individual (who is not a party to the DPA proceedings) had committed a criminal offence. Whilst a DPA does require judicial approval, the judge does not, and is not required to, assess whether the evidence underpinning it is sufficient to establish the agreed facts; the judge’s task is instead to assess and declare that the DPA is in the interests of justice, and that its terms are fair, reasonable and proportionate. Understandably judges will not be encouraged by either the SFO or the relevant corporate to test the evidence underpinning the agreed facts; rather their focus will be on having the DPA judicially approved. In all these circumstances, it is hardly surprising that: (i) in many cases where the SFO has subsequently properly considered the evidence, no individual was prosecuted; and (ii) in other cases where the SFO has prosecuted individuals thus far, they have been subsequently acquitted.
Most lawyers in the UK are of the view that our adversarial system produces a high quality of justice, involving a robust assessment of all the relevant evidence by a court. By marked contrast, the DPA regime is consensual and not adversarial, and does not require judicial scrutiny of the underlying evidence. It can also be said that it encourages the SFO to become wedded to a view of the evidence that it thinks has been approved by the Court. It is interesting that in response to an interview in the Daily Telegraph by one of the acquitted SGL defendants, the SFO is quoted as saying that the SoF was approved by the judge in the DPA hearing, implying that the judge had tested it against the evidence. That is simply not what happens, but this misconception may cause prosecutors to become closed-minded to the problems with their cases.”
This article was published by Fraud Intelligence 15/05/2021. Read the full version on their website.