Miranda Ching considers the introduction of deferred prosecution agreements, the Assange case, time limits and article 6 rights on extradition, and the changes to criminal law brought in by LASPO
Deferred prosecution agreements
In early May, ministers introduced consultation plans for deferred prosecution
agreements (DPAs), a system modelled on the US approach to imposing fines on companies in exchange for prosecutors
suspending a criminal case. DPAs will apply only to companies being investigated for economic crimes such as fraud, bribery and money laundering. The consultation paper envisages a system whereby companies, upon acknowledgement of wrongdoing (the extent of which could amount to an admission of criminal liability), agree to financial penalties, restitution for victims, confiscation of the profits of wrongdoing and to the implementation of measures to prevent future offending. Agreements are intended to last between one and three years, and, following successful adherence to its terms, the ultimate outcome would be for the criminal prosecution to be suspended.
When David Green QC commenced his appointment as the SFO’s director in April, he said: “We will press for all the tools necessary to maximise our impact. The SFO will be tough but approachable.” Certainly, this appears to be a statement of intent from Green to embrace all methods available,
including DPAs, to improve the SFO’s effectiveness in combating serious crime.
By the government’s own admission, previous attempts to prosecute serious economic crime have only been “intermittently successful”. The SFO is burdened with a
responsibility to tackle white-collar crime, but clearly lacks the resources to properly do so. With the increasing complexity and internationalisation of economic crime, headed against the SFO’s reduction in budget, the introduction of DPAs may prove a welcome relief for both prosecutors and defendants alike.
Comparisons to the US system are inevitable, and given the successes of the
Securities and Exchange Commission (SEC) in landing high-profile cases with large fines, this is something the SFO will be obviously attracted to. It is also argued that DPAs will encourage companies to self-report following the conduct of their own
internal investigations, where there presently is little or no incentive to do so. It would, however, not be right to simply adopt the US approach without modification – in the US, companies will often be vicariously liable for the acts of their employees, whereas in the UK the burden and standard of proof is far higher as the prosecution is normally required to show that the ‘directing mind and will’ of an organisation was at fault.
It is anticipated that any UK model will include judicial involvement. Our legal traditions dictate that the court should be the ultimate arbiter in sanctioning DPAs, and be responsible for determining the outcome of disputes during significant events in the negotiation process.
Penalty points to prison term
Having commented on the failure to secure high-profile convictions in serious fraud, it is somewhat ironic that the first successful prosecution under the new Bribery Act concerned a 22-year-old court clerk from Redbridge Magistrates’ Court. Munir Patel had pleaded guilty to abusing his position as a court clerk to accept bribes from those who had committed motoring offences to avoid disqualification, fines and penalty points. Patel was initially sentenced to three years for bribery and a concurrent six-year term for misconduct in a public office. His appeal against sentence was successful in reducing the term to four years, on the basis that the original sentence was excessive for a young man of previous good character, who had pleaded guilty at the earliest opportunity.
Assange v Sweden
In one of the most hotly anticipated decisions of the year, Julian Assange’s attempt to prevent his extradition to Sweden on allegations of sexual molestation and rape seemingly came to an end on 14 June. In a 5:2 majority decision (Lady Hale and Lord Mance dissenting), the Supreme Court decided against Assange on the single issue of public importance: whether the Swedish public prosecutor was a ‘judicial
authority’ within section 2(2) and 66 of the
Extradition Act 2003. Assange argued that a
‘judicial authority’ had to be independent, and prosecutors could not be given they are party to the proceedings. Alternatively, if prosecutors could issue warrants, then it was argued that parliament had intended to restrict the power to issue warrants to
a judge or the court. In response, Sweden
argued that the term ‘judicial authority’ bore a broad meaning to describe persons or bodies authorised to play a part in the
Subsequently, Dinah Rose QC, counsel for Assange, was granted permission to make an application to reopen the case, on the ground that the majority decision took into consideration the Vienna Convention on the Law of Treaties 1969, a matter which had not been argued by Assange or Sweden during the hearing itself. Lady Hale, in dissent, had described reliance on the Vienna Convention as a “flimsy basis” upon which we are to construe the meaning of an Act of parliament.
Among her submissions Rose raised the relevance of subsequent events, other EU instruments and the practice of EU states. A considerable volume of documentary material that had been placed before the court related to these matters.
Lord Brown expressly put to her that the convention applied to the interpretation of the framework decision. That convention, as Rose recognised, sets out rules of customary international law. He said that, had she been minded to challenge the applicability of the convention, or the applicability of state practice as an aid to the construction of the framework decision, or the relevance and admissibility of the material relating to state practice, she had the opportunity to do so. He said she made no such challenge and that her submissions were to the effect that caution should be exercised when considering the effect of state practice.
The application was unsuccessful, so, unless an appeal is made the European Court of Human Rights, Assange will be extradited to Sweden by the end of June. The court has ordered that, with the agreement of the respondent and pursuant to section 36(3)(b) of the Extradition Act 2003, the required period for extradition shall not commence until the 14th day after 14 June.
Lukaszewski v Poland; Halligen v USA  UKSC 20 is another recent Supreme Court decision of interest, which looked at the requirements for service of notices of appeal in extradition cases. In the cases of the three Polish men who had been remanded in custody following an order for extradition, prison officers at HMP Wandsworth
assisted the men, who were legally unrepresented, in filing their appeals within the strict time limits. A copy of the appeal
needed to be served upon the Crown Prosecution Service (CPS), but, instead of sending all of the pages of the appeal, only the cover sheet was faxed (with basic information confirming the defendant’s name and his intention to appeal).
The Administrative Court struck out their appeals on the ground that service of the first page of the appeal form alone did not constitute valid service. The Supreme Court allowed the appeal, deciding that the irregularities in service were capable of being cured by the court, and that the facts in these circumstances merited it.
The facts for Halligen were different: he had not served any notice of appeal on the CPS (although he had served notice of an intention to appeal). In a decision that surprised many extradition lawyers, the court ruled that Halligen’s right to a fair trial under article 6 of the convention was engaged. The court decided that the statutory provisions regarding the permitted periods for appeals could impair the essence of the right of appeal, and that these provisions must therefore be read subject to the qualification that the court must have discretion in exceptional circumstances to extend time for filing and service, where such statutory provisions would otherwise conflict with the right of access to an appeal process held to exist under article 6(1). Interestingly though, this point only impacts on UK nationals, which may give rise to further litigation to clarify the position concerning foreign nationals.
LASPO: criminal law changes
The Legal Aid Sentencing and Punishment of Offenders Act 2012 finally received Royal Assent on 1 May, in spite of protest and
criticism of cuts made to the scope and eligibility for legal aid.
In relation to criminal law, a number of new changes have been incorporated. The Act creates new criminal offences: threatening people with a knife in public or at schools, and causing serious injury by driving dangerously. It will be interesting to see how the new knife offence will take effect; because sentencing practice and guidelines for possession of an offence weapons are well established, it is unclear as to how this new offence distinguishes itself from the other statutory offences available. On the other hand, the new driving offence does appear to be needed as the previous powers concerning dangerous driving under the Road Traffic Act 1988 covered only death by dangerous driving, and dangerous driving itself (which did not necessarily require the causing of any injury).
There are also changes to the law on bail, which are aimed at reducing the numbers of people remanded in custody unnecessarily. There is a new test of ‘no real prospect’, whereby people would be released on bail if they would be unlikely to receive a custodial sentence. Previously, the court would address bail by taking the prosecution case at its highest – this new test suggests that the defence have more flexibility to attack the merits of the Crown’s case in the assessment of seriousness and make submissions based on the anticipated sentencing outcome.
Lastly, greater flexibility has been introduced in dealing with suspended sentences. Whereas previously the court could not suspend prison sentences longer than 12 months, amendments now enable the court to suspend sentences of imprisonment for up to two years. It will no longer be compulsory to impose a community requirement alongside the suspended sentence – when this had initially been introduced it was considered necessary that the offender, in avoiding custody, be seen to repay the community or deal with substance misuse (where appropriate). It is helpful that the court is no longer forced to impose a community requirement, as, in some cases, it clearly was not in the public interest nor appropriate in the circumstances to do so. Also helpful is the introduction of financial penalties for breaches of suspended sentences, which presumably will only be applied in circumstances of very minor breaches.
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