An article from White & Case on 11th May says that commentary is divided as to the relative success of the DPA process and whether it provides an effective tool for compelling businesses to behave ethically and within the law.  The article looks at uses made of it and its potential future, saying that questions have been asked about whether DPA are, in fact, a ‘soft option’ for corporates to absolve themselves of responsibility and to avoid the risks of potential prosecution.  Currently, offences involving the failure to prevent criminal conduct extends only to failure to prevent bribery under the Bribery Act, and failure to prevent the facilitation of tax evasion, and there have been calls to expand ‘failure to prevent’ offences to other economic crimes such as fraud.  Any introduction of a more wide-ranging ‘failure to prevent’ offence could nevertheless be seen as a move towards a position closer to the wider breadth of US corporate liability.  The article also considers the option of the systemic use of ‘immunised witnesses’, with whistleblowers or co-operating individuals avoiding prosecution – and British attitudes to such protection in the light of the previous use of “supergrasses”.

Author: raytodd2017

Chartered Legal Executive and former senior manager with Isle of Man Customs and Excise, where I was (amongst other things) Sanctions Officer (for UN/EU sanctions), Export Licensing Officer and Manager of the Legal-Library & Collectorate Support Section

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