Deferred Prosecution Agreements, Invitation to Comment on
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CRIMINAL PROCEDURE RULE COMMITTEE
DEFERRED PROSECUTION AGREEMENTS
Invitation to comment on proposed new rules
Introduction 1. The Criminal Procedure Rule Committee proposes making rules to supplement the provisions for deferred prosecution agreements contained in Schedule 17 to the Crime and Courts Act 2013. The Committee invites views. 2. The Rule Committee is the body appointed under section 70 of the Courts Act 2003 to make rules governing the practice and procedure to be followed in the criminal courts. The rules currently in force are The Criminal Procedure Rules 2012, which came into force on 1st October, 2012, amended from 1st April, 2013, by the Criminal Procedure (Amendment) Rules 2012. Information about the Committee and about the Rules may be found on the website of the Ministry of Justice at:
http://www.justice.gov.uk/courts/procedure-rules/criminal 3. The Rule Committee would be especially grateful for the views of those members of the judiciary and of the legal professions, of those prosecuting and other authorities, and of those commentators, to whom this invitation has been addressed, and who are listed in an appendix to this invitation, at page 11. The Committee would welcome, too, the views of any others whom those consulted may know to have an interest in the subject matter of this proposal. 4. With this invitation is a copy of the proposed rules, namely a new Part 12 of the Criminal Procedure Rules, and amendments (marked by underlining) to rules 76.1 and 76.7, about costs. 5. The Committee invites comments on the proposed rules generally, or on any aspect of them. The questions that those consulted are asked to consider in particular appear at paragraph 52, on page 10. Please reply to the Criminal Procedure Rule Committee secretariat at the Ministry of Justice by 30th September, 2013. Responses by email may be sent to: CriminalProcedureRuleEnquiries@justice.gsi.gov.uk. 6. Although the Committee does not intend to publish a list of those who comment, or the content of their comments, respondents are asked to bear in mind that responses will be treated as public documents in accordance with the Freedom of Information Act 2000 and may be made available to enquirers on request.
Background 7. Schedule 17 to the Crime and Courts Act 2013 enacts provision for a deferred prosecution agreement, which the Explanatory Notes published with the Act describe as a new enforcement tool to deal with economic crime committed by commercial organisations. Such agreements are novel, and so, too, therefore, is the associated procedure required. However, that procedure is for the most part compelled by the Act and is straightforward. The elements of it are (this is not a resume of all the provisions of Schedule 17):
(1) The prosecutor must apply to the Crown Court for a declaration that (a) entering into a deferred prosecution agreement with the proposed defendant is likely to be in the interests of justice, and (b) the proposed terms of the agreement are fair, reasonable and proportionate (Schedule 17, paragraph 7: an application described in the proposed rules as a prosecutors application to the court to approve a proposal to enter an agreement).
(2) If the court makes that declaration, then when the parties have agreed terms the prosecutor must apply again, for a declaration that (a) the (now settled) deferred prosecution agreement is in the interests of justice, and (b) the terms of the agreement are fair, reasonable and proportionate (Schedule 17, paragraph 8: in the proposed rules, a prosecutors application to the court to approve the terms of an agreement).
(3) If the court again declares itself satisfied, then a prosecution at once begins, on an indictment preferred with the judges consent; and that prosecution is at once suspended automatically by the legislation (Schedule 17, paragraphs 2 and 8).
(4) If, subsequently, the prosecutor believes that the defendant has failed to comply with the terms of the agreement, then on application by the prosecutor (in the draft rules, an application on breach of agreement) the court must decide whether the defendant has indeed failed to comply and, if so, then whether to terminate the agreement or instead to invite the parties to agree proposals to remedy that failure (Schedule 17, paragraph 9).
(5) If (i) on an application on breach of agreement the court invites the parties to make proposals to remedy the defendants failure, or (ii) variation of the agreement is necessary to avoid a failure by the defendant to comply with it, in circumstances which the parties neither could have foreseen nor did foresee: then in either case the prosecutor must apply to the Crown Court for a declaration that (a) the variation proposed by the parties is in the interests of justice, and (b) the terms of the agreement as varied are fair, reasonable and proportionate (Schedule 17, paragraph 10: described in the proposed rules as a prosecutors application to the court to approve a variation of the terms of an agreement).
(6) If the agreement is terminated by the court, the suspension of the associated prosecution is not automatically removed but it may be lifted on an application by the prosecutor (Schedule 17, paragraph 2(3): in the proposed rules, an application to lift suspension of prosecution).
(7) If, however, the agreement expires by effluxion of time, without premature termination by the court, then the prosecutor must give notice discontinuing the
prosecution (Schedule 17, paragraph 11: in the proposed rules, a notice to discontinue prosecution).
(8) The prosecutor is obliged by various provisions of Schedule 17 to publish specified information about the courts and the prosecutors decisions. On application by either party, the court may order that publication to be postponed (Schedule 17, paragraph 12: in the proposed rules, an application to postpone the publication of information by the prosecutor).
8. Criminal Procedure Rules govern the practice and procedure of the Crown Court in any case in which that court deals with a criminal cause or matter. Proceedings before that court under Schedule 17 to the Act are in such a cause or matter. To that extent, therefore, they fall within the competence of the Rules. The deferred prosecution agreement rules Location of the proposed rules 9. In the Committees view, these rules belong in the preliminary proceedings division of the Criminal Procedure Rules. Within that division, Part 12 recently was vacated (by the removal to Part 9 of the rules about sending for trial). Hence the location presently proposed. However, the Rule Committee intends that the Rules should be re-organised in 2015, by when it will be possible to dispose of empty Part numbers. So Part 12 may be temporary accommodation. Procedure deriving from the Act and from other Criminal Procedure Rules 10. Much of the procedure contained in the proposed rules is compelled by the provisions of the Act, either expressly or by necessary implication. The Act itself requires that:
(a) an application to approve a proposal to enter an agreement must be heard in private;
(b) an application to approve the terms of an agreement, and any application to approve a variation of the terms of an agreement, may be heard in public or in private; and
(c) (this by reason of the omission of any contrary provision) any application on the believed breach of an agreement, and any application to lift the suspension of a prosecution following termination of an agreement, must be heard in public unless, in the exercise of its inherent powers, the court were to order otherwise.
11. Given the application of the Criminal Procedure Rules to proceedings in the Crown Court under Schedule 17, other rules, including the overriding objective, the Part 3 case management rules and the Part 5 and Part 16 rules about court records and reporting and access restrictions, respectively, all apply. Sequence of rules 12. The sequence of the rules follows the model of other Parts, and otherwise follows the sequence of Schedule 17. General
13. The rules require each application for which they provide to be in writing. It has been assumed that, as a starting point, there should be created, and subsequently retained, written records of exactly what has been sought, and why, as well as records of the courts decisions. However, the proposed rules provide for two exceptions. 14. First, where the court approves a proposal to enter an agreement, it is not impossible (though it may be unlikely) that the parties prior negotiations have advanced sufficiently for them to be able at once to invite the court to approve the terms of that agreement. Of necessity, in such a case, there must be an agreement to approve; and a draft indictment; and perhaps some other material relevant only to an approval of the terms of the agreement, not relevant to the proposal to enter it. Of necessity, the court must be willing to proceed at once. But where the parties invite the court to proceed at once from the first to the second application, and the court agrees to do so under (in the proposed rules) rule 12.2(7)(a), then it may be unnecessary for the rules to require that the application under rule 12.4 must itself be in writing, as well as the immediately preceding application under rule 12.3. Therefore the rules allow the court to waive the requirement for the second application to be written: rule 12.11(1)(b)(i). 15. Second, it is also possible that, where a prosecutor establishes to the satisfaction of the court that the defendant has failed to comply with a deferred prosecution agreement, and the court decides to terminate the agreement, then the prosecutor will wish to apply at once for the lifting of the suspension of the prosecution. Here again, if the court agrees to proceed at once to deal with that second application, then justice may not require written notice of it; or require another 28 days for the defendant to prepare a response. Here again, therefore, the rules allow the court to proceed at once (rule 12.2(7)(b)); to abbreviate, potentially to nothing, the period for a response (rule 12.11(1)(a)); and to allow the second application to be made orally (rule 12.11(1)(b)(ii)). Rule 12.1: When this Part applies 16. In the manner of rules introducing other Parts of the Criminal Procedure Rules, the rule defines the scope of the Part. Notes to the rule summarise the principal relevant statutory provisions. Rule 12.2: Exercise of courts powers 17. In the manner of other such Criminal Procedure Rules1, the rule incorporates the statutory requirements for hearings to be in private, or in public, as the case may be. 18. In the manner of other such Criminal Procedure Rules, the rule specifies circumstances in which the court may, or must not, exercise its relevant powers in a partys absence2; and indicates the circumstances in which the court may exercise its (here, inherent) power to adjourn3. 19. There is provision for hearings in private that is compelled by Schedule 17; and provision explicitly to allow one application to follow another immediately, in 1 See, for example, rule 9.2. 2 See, for example, rules 19.2 and 29.8. 3 See, for example, rule 37.2(3).
connection with the approval of an agreement, or in connection with the termination of an agreement. 20. Rule 12.2(3) requires that each application for the courts approval (that is, of a proposal to enter an agreement; of the terms of an agreement; or of a variation of those terms) must be accompanied by a declaration by each party that neither has supplied inaccurate, misleading or incomplete information. The purpose of such a declaration is to give the Crown Court a potential remedy in the event of it being misled. The prosecutor can include a sanction for non-disclosure by the defendant as a term of the agreement: paragraph 5(5) of Schedule 17. If non-disclosure by the defendant should emerge after the agreement has expired, then the prosecutor can institute fresh proceedings: paragraph 11(3) of Schedule 17. But those are matters for the prosecutor. This proposed requirement would give the court its own sanction. 21. Broadly comparable declarations are required by other rules: rule 6.3(4) (declarations in support of applications for certain investigation orders; rule 28.4 (required content of written applications for witness summonses, etc.); rule 33.3(1)(j) (required content of an experts report); rule 57.7 (statements of truth in witness statements in confiscation, etc. proceedings); and rule 62.12 (required content of a witness statement in support of an application to commit for contempt of court). Some of those requirements apply in magistrates courts as well as in the Crown Court and so have been framed accordingly. However, the relevant powers of the Crown Court are not the same as those of magistrates courts. 22. The effect of a rule of court such as that here proposed has been considered in the context of Civil Procedure Rules. Part 32 of those Rules contains provisions that deal with evidence. CPR rule 32.14 provides, (1) Proceedings for contempt of court may be brought against a person if he makes, or causes to be made, a false statement in a document verified by a statement of truth without an honest belief in its truth. (2) Proceedings under this rule may be brought only (a) by the Attorney General, or (b) with the permission of the court. 23. That rule was considered by the Vice-Chancellor in Malgar Ltd. v R. E. Leach (Engineering) Ltd.4:
It is, I think, necessary to make clear that rules of court cannot make substantive changes in the law of contempt. There is much case law describing in what circumstances a contempt of court is committed. There are civil contempts and there are criminal contempts and the line between the two is not always easy to draw. But the circumstances which may justify a finding of contempt are established by case law and set out in the text books on the subject. It is not open to rules of court to introduce a new category of contempt, and CPR 32.14 does not do that. It provides for the possibility of a person being prosecuted for contempt if he makes or causes to be made a false statement, etc., but it does not predict what the outcome of the prosecution will be. That is a matter which must be left to the general law.
4  F.S.R. 393 (Sir Richard Scott, V-C; judgment 1/11/1999).
So what is the general law in this particular area? The general law of contempt is that actions done by an individual which interfere with the course of justice or which attempt to interfere with the course of justice are capable of constituting contempt of court. In order...