Crime and Courts Act 2013 (Deferred Prosecution Agreements) (Amendment of Specified Offences) Order 2018

Lord Beecham Excerpts

Wednesday 9th May 2018 Grand Committee

[Lord Thomas of Gresford (LD)]

My Lords, this is a perfectly acceptable amendment to the schedule to remove the anomaly that now exists. It is a moment, however, to consider the value and use of deferred prosecution agreements. As the noble Baroness pointed out, only four such agreements have so far been approved by the court, and only three of the judgments in those cases have as yet been published. However, those cases have made it possible to find some clear principles that should be applied. Sir Brian Leveson, President of the Queen’s Bench Division, put it this way: a deferred prosecution agreement,

“is a reward for openness”.

The first essential is co-operation with an investigation. The sooner a company comes in and self-reports, the more it has to be rewarded for. The SFO will look at what work has already been done to investigate, how thoroughly it has been done and how data has been dealt with—in a way that does not tip off potential suspects leading them to delete that data altogether. Secondly, the company must be committed to reform. This may mean removing senior staff responsible for the criminality and instituting changes in procedures. The SFO must be in a position to go before a judge and argue that the default position of a prosecution can be displaced in the specific case and that a deferred prosecution agreement is justified. The judge has to give his approval to this.

In the Rolls-Royce case, which is the largest of the cases so far, the judge commented that his first reaction to what was put before him had been that if the company was not to be prosecuted,

“in the context of such egregious criminality over decades, involving countries around the world, making truly vast corrupt payments and, consequently, even greater profits then it is difficult to see that any company would be prosecuted”.

Rolls-Royce had not self-reported, but it co-operated. It was its co-operation that enabled the SFO to take the matter before the court. What the company did report, when tasked with it, was far more extensive and of a different order to what may have been exposed without the co-operation that it provided. I hope that the committee of this House carrying out post-legislative scrutiny of the Bribery Act, which has just been formed, will give an opportunity to examine DPAs and how they should be used with great care.

[Lord Beecham (Lab)]

My Lords, four agreements in between four and five years does not strike me as a particularly impressive figure. I appreciate that the Minister may not be able to answer several questions today, but perhaps she can answer them subsequently by letter. How many cases were considered but not proceeded with? On the four cases to which she referred, what financial penalty was imposed on the relevant companies? In addition to such financial penalties, were proceedings taken against individuals, which is clearly a separate matter? On the companies that were subject to the provisions, what changes may have been made within those companies, assuming things have gone wrong not necessarily with the companies’ full understanding at the time? How many cases have been investigated and not proceeded with, and was such a decision made because there was no case to answer or for other reasons—for example, lack of financial capacity in the company to pay any penalty?

What is the present caseload of the relevant department for these arrangements? Are any cases currently under consideration and, if so, roughly how many? How long will it take for such matters to be resolved? In other words, is there likely to be rather more than an average of one a year in future? If not, are the Government satisfied that the regime is proving effective, and what further steps might be taken to make more use of the provision now that it will be brought up to date?

[Baroness Vere of Norbiton]

I thank both noble Lords for their contributions today and for broadly welcoming the order. I thank the noble Lord, Lord Thomas of Gresford, for his insights into the use of DPAs and the Rolls-Royce case, which was indeed rather large. As he pointed out, there is now an ad hoc committee on the Bribery Act. Obviously, it is not for us to consider its terms of reference, but I am sure that it will look into these things. The Government continue to support the use of DPAs when appropriate.

Turning to the points raised by the noble Lord, Lord Beecham, he will be aware that I cannot say anything about the current caseload or casework going through the system at the moment, but I am very happy to write to him, as I would not want to mislead him. I am fairly sure that we can get the answers to a number of questions, and I will copy the answers to all noble Lords, because it would be good for noble Lords to understand how many DPAs have been used.

We should not necessarily assume that there have been too few or too many DPAs. They obviously have to be used only in appropriate cases. We may be able to draw conclusions from the information we get, but the Government continue to support their use. They can be very good for justice, fairness and jobs.

The order addresses a small but important statutory anomaly which is preventing future use of DPAs for this type of corporate offending. I therefore commend it to the Committee.