Trying Corporate Actors – Why Not Prosecute?

Abstract

Deferred prosecution agreements (DPAs) allow prosecutors to negotiate and enter into agreements with corporate actors to defer or suspend criminal proceedings, subject to adherence to certain conditions. Developed in the US, in place on a statutory basis in England and Wales since 2013, and likely to be introduced in Australia this year, DPAs are seen to allow the State to intervene and impose conditions on a corporate actor for criminal behaviour, while permitting the entity to make reparation without the collateral damage of conviction. DPAs are proposed as quicker, cheaper, and more predictable than the conventional criminal trial with its costs, risks, and delays. I consider if and how a mechanism for deferring prosecution can cohere with the existing scheme of corporate criminal liability, and with the apparent desire and drive for more robust responses to corporate crime. I argue that DPAs are both necessitated by but also misconstrued as a way of offsetting problems with corporate criminal liability. Moreover, and paradoxically, while DPAs are introduced in an effort to remedy such issues, they are deployed also so as to mitigate the inevitable consequences of conviction, that is, the ‘successful’ use of corporate criminal liability. DPAs therefore both serve to supplement as well as dilute corporate criminal liability. Beyond this, DPAs have implications for individual criminal liability and the scheme of corporate civil liability.