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 de