ARTICLES: WRITTEN MOOT 2
such loans for at least 365 days to be backed up by capital.156
A. Inherent dependence on the strength of prosecution
Therefore, with cultural change that prevents future wrongdoing unlikely to take effect through deterrence or enforced compliance measures, it is submitted that the DPA is unlikely to be an effective tool in addressing corporate economic crime. This is further supported by the recidivist behaviour of companies which have entered into DPAs in the US,157 most notably Pfizer Inc., which was involved in bribery despite previously entering into three DPAs for similar conduct.158
As discussed, DPAs may be said to allow prosecutors to hold corporate offenders to account by enhancing the detection and investigation of corporate economic crime through incentivising self-reporting and providing scope for enforcement action to be taken in lieu of formal criminal proceedings. As regards the former, corporate offenders are fundamentally unlikely to self-report in the first place. This is because the “absence of a credible threat of corporate prosecution”159 arising from the evidential limitations of the identification doctrine, which is the principal mechanism for establishing corporate criminal liability for economic crimes (above), makes the risk of “getting caught” too low to justify “coming forward and accepting liability”.160 Similarly, for a DPA to come into force as an enforcement mechanism, it requires the target company to voluntarily agree to its terms and statement of facts, which it is not obliged to do.161 Yet, because of the weakness of the corporate criminal liability regime, the likelihood of being convicted at trial would also similarly be insufficiently significant to justify accepting
III. Fundamental limitations of the UK DPA Moreover, it is further submitted that UK DPAs are even more unlikely to effectively address corporate economic crime because they are fundamentally limited by their inherent characteristics. First, as alluded to in Part II, their ability to hold corporate offenders to account is intrinsically dependent upon the strength of the UK’s corporate crime enforcement response. This being largely weak, their capacity to ensure accountability is thus constrained. Second, being a procedure targeting corporations or similar bodies, the DPA is beset with legitimacy issues that restrict its potential to institute substantive changes in corporate culture.
156 Grant Kirkpatrick, ‘The Corporate Governance Lessons from the Financial Crisis’ [2009] 1 Financial Market Trends 61, 70; Adrian Blundell-Wignall and Paul Atkinson, ‘The Sub-Prime Crisis: Causal Distortions and Regulatory Reform’ in Paul Bloxham and Christopher Kent (eds) Lessons from the Financial Turmoil of 2007 and 2008 (Reserve Bank of Australia 2008) 78; Julia Black, ‘Paradoxes and Failures: ‘New Governance’ Techniques and the Financial Crisis’ (2012) 75 MLR 1037, 1040. 157 Weismann, Buscaglia and Peterson (n 146) 596; Eunice Chua, ‘Deferred Prosecution Agreements in Singapore?’ (Singapore Law Blog, 30 January 2018) <http://www. singaporelawblog.sg/blog/article/205> accessed 13 March 2019. 158 Nasar (n 80) 874-875; Rakoff (n 46).
159 King and Lord, Negotiated Justice and Corporate Crime (n 114) 76, 82, 119, 132; Mike Levi and Nicholas Lord, ‘WhiteCollar and Corporate Crimes’, in Alison Liebling, Shadd Maruna, and Lesley McAra (eds), Oxford Handbook of Criminology (6th edn, OUP 2017) 734; Call for Evidence 2017 (n 38) 21, 23. 160 Marialuisa Taddia, ‘Economic crime: corruption conundrum’ The Law Society Gazette (London, 27 October 2014) quoting Jeremy Summers <http://www.lawgazette.co.uk/law/ economic-crime-corruption-conundrum/5044646.fullarticle> accessed 13 March 2019; James Mulholland, Alexandra Ward and Eleanor Mawrey, Joint Response of the Criminal Bar Association And Law Reform Committee of the General Council of the Bar of England and Wales to the Ministry Of Justice Consultation On A New Enforcement Tool To Deal With Economic Crime Committed By Commercial Organisation: Deferred Prosecution Agreements (July 2012) para 7 <https://www.barcouncil.org.uk/media/160666/ joint_cba___lrc_deferred_prosecution_agreements_response. pdf> accessed 13 March 2019; ‘Lessons Learnt from Recent Deferred Prosecution Agreements and What’s in Store for 2018? Exiger Integrity Forum’ (Exiger, 13 December 2017) citing Edward Garnier’s speech at the Exiger Integrity Forum <https://www.exiger.com/perspectives/lessons-learnt-recentdeferred-prosecution-agreements-and-what%E2%80%99sstore-2018-exiger> accessed 13 March 2019. 161 DPA Code of Practice (n 14) para 3.3.
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