UK regulators will have a new tool for fighting fraud, bribery, and money laundering when the Crimes and Courts Bill goes into effect in early 2014. How will they compare to those being used in the US? From attorneys at Dechert:
- “In the US, prosecutors can enter into DPAs with individuals whereas in the UK, only companies, partnerships and unincorporated associations can enter into DPAs.
- In the UK, the range of offences to which DPAs apply are limited to economic crimes which are essentially fraud, bribery and money laundering offences. In the US, prosecutors have used DPAs more broadly including for health and safety or environmental offences.
- In the UK, the Government has confirmed that an accused’s right to refuse to disclose information subject to legal professional privilege will continue to apply in its current form. In the US, companies were often finding themselves waiving legal privilege to demonstrate cooperation with an investigation. In 2006, the Department of Justice (the “DOJ”) put out guidance reminding prosecutors that they should seek waivers of privilege only in rare instances and only with approval from senior officials. The DOJ strengthened this guidance in 2008 and the Securities and Exchange Commission followed suit in 2010, but companies still sometimes waive privilege in an effort to show the fullness of their cooperation.
- Further to Lord Justice Thomas’ criticism of the plea agreement entered into with Innospec Ltd in 2010 for lack of judicial input, the Act anticipates an early and active role for the UK judiciary in the negotiation, approval and variation of DPAs. In the US, DPAs do not require judicial approval.
- The Act promotes transparency as it requires that the terms of the DPA, the declaration of the Court and the reasons set out at the preliminary and final hearings are publicly available. In the US, the DOJ has widely been criticised for a lack of transparency.”
Read the full update, Deferred Prosecution Agreements: A Powerful New Tool for UK Prosecutors? - Dechert LLP»