DPAs – A new prosecution tool or a blunt instrument?

When Edward Garnier Q.C M.P was unceremoniously and, in my view, wrongly fired by David Cameron in September, Dominic Grieve, the Attorney General said of him:

“I also wish to pay tribute to the outgoing Solicitor General, Edward Garnier QC MP, whose stalwart support and wise counsel have been invaluable to me over the past two years. In particular Edward has worked tirelessly and very effectively to improve the tools available to prosecutors in fraud and corruption cases through his work on proposed statutory deferred prosecution agreements.”

This public endorsement of DPAs was not surprising. The Director of Serious Fraud Office is appointed by and works under the superintendence of the Attorney General. There are weekly meetings at which both policy issues and high profile cases are discussed. Edward Garnier’s determination to drive through DPA’s was no doubt a product of those discussions.

So while Edward fell DPA’s did not. In fact DPAs are likely to be introduced in The Courts and Justice Bill this October and are likely to be available as a prosecutorial tool with effect from either late 2013 or early 2014.

Many, including myself, have expressed doubts about how effective DPAs would actually be. That which makes our system great – the independence of the Judiciary which is enshrined both in the constitution and the new procedure– creates uncertainty of outcome. The effectiveness of deferred and non-prosecution agreements in the States is founded on the fact that they provide certainty.

But if there were doubts before they were amplified this week. The re-issue of policy by the Director of the Serious Fraud Office David Green Q.C on self-disclosure marked a step change in approach by that Office. There are now no guarantees of leniency purely because of self-disclosure.

So we have a Prosecutor who has re-asserted his desire to prosecute and statutory endorsement of the long cherished constitutional principal of the independence of the Judiciary. No assumption of leniency, no deals, no certainty. This particular tool may well turn out to be very blunt indeed.

_________

Bill Waite is a contributing editor of the FCPA Blog.