Deferred prosecution agreements in Jersey: Ways to buttress the castle. A comparative analysis of regimes for deferred prosecution agreements in Jersey and England and Wales

Abstract

The Bailiwick of Jersey (“Jersey”) and the UK face similar challenges when attributing criminal liability to corporate entities. Both jurisdictions have sought to meet some of these challenges by the introduction of deferred prosecution agreements (“DPAs”) and failure to prevent (“FTP”) offences. King and Lord (2020) provide an insightful and valid critique of the DPA regime in England and Wales and its application in practice by the courts of that jurisdiction. While the DPA regime in Jersey has been developed by building on the regime in England and Wales, there are significant differences. This paper provides an overview of DPAs in Jersey, highlighting aspects of the regime that address the weaknesses identified by King and Lord. Additionally, the paper uses a basic game-theoretic approach to analyse three different criminal justice environments: one without DPAs; one with English DPAs and one with Jersey DPAs (Appendix A). The results from this analysis are then considered against the idiosyncrasies of the different prosecution regimes: self-reporting requirements; the probability of a prosecution; deterrent effects and how DPAs modify the effectiveness of the criminal justice system. The impact on deterrence is illustrated by providing a simple example of a deterrence function (Appendix B). It is submitted that aspects of DPAs in Jersey better serve to increase the effectiveness of the criminal justice system. This discussion and the results regarding the effectiveness of the different DPA regimes is suggested as relevant for legislators and practitioners in other jurisdictions who are either contemplating the introduction of a DPA regime or the principles that underpin the approval of a DPA in practice.