Owning up to crimes could stop prosecution

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BUSINESSES will be able to confess criminal wrongdoing to the Attorney General and then potentially strike a deal to avoid prosecution, if the States agree to introduce a new law to combat financial crime.

Later this month, States Members will debate bringing in a new law to enable the use of ‘Deferred Prosecution Agreements’ – which the government argues are a more effective way to hold a firm to account than a traditional prosecution through the courts.

DPAs are agreements reached under judicial supervision between the prosecutor and a corporate defendant relating to an economic crime. Agreements would allow a prosecution to be suspended for a defined period and potentially discontinued, provided that the business meets certain conditions under a binding deal between the prosecutor and the entity, which is approved by the Royal Court.

They would not mean, however, that the business avoided punishment. Paying a fine, handing over a portion of profit, covering all court costs or even a donation to charity could form part of any agreement.

Dr Bastian Hertstein, associate director in the Economy Department with responsibility for Financial Crime Strategy, said: ‘DPAs provide an alternative mechanism to hold legal entities to account for situations where that might not be possible otherwise.

‘The challenges of attributing criminal liability to legal entities are not unique to Jersey and that is why the UK has introduced DPAs almost ten years ago and Guernsey is planning to do the same next year.’

DPAs are a way to overcome a legal hurdle – where an entity can only be criminally prosecuted if someone in that organisation can be proved to be the ‘directing mind and will’ of the business. In the modern world of corporate decision-making, that is often difficult to determine.

The agreements – with their emphasis on giving an opportunity for a firm to right its wrongs – are generally viewed as a better alternative to traditional prosecution, being generally cheaper, less likely to lead to conviction, and less damaging to a company’s reputation.

Asked how transparent the process was, Dr Hertstein said: ‘The entire DPA process is subject to supervision and approval by the Royal Court.

‘The court will have to determine whether the DPA is in the interest of justice and whether the terms of the DPA are fair, reasonable and proportionate. Furthermore, the details of a DPA will be published.’

He added: ‘However, it is only possible to publish those details after the conclusion of the DPA because as long as the prosecution is deferred – ie as long as the DPA is ongoing – the Attorney General might apply to court to resume a regular prosecution, for example, if the defendant does not comply with the terms of the DPA, and therefore, an earlier publication of the DPA could prejudice the administration of justice in any legal proceedings.

‘It would clearly not be in the interest of justice if a corporate offender could no longer be prosecuted simply because the details of the DPA were published too early.’

He added that, under the draft law, DPAs would apply only to legal entities and not individuals. However, under the terms of an agreement, the business would have to provide any evidence the Attorney General might ask for in order to pursue the prosecution of a person.

‘It is the AG’s prerogative to bring a criminal prosecution against any individual where the public interest test and the evidential test are met. The draft DPA law does not change any of that,’ he said.

The draft law is due to be debated in the sitting beginning on Monday 12 December.

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