Justifications and Purposes of Negotiated Justice for Corporate Offenders: Deferred and Non-Prosecution Agreements in the UK and US Systems of Criminal Justice

This article offers an overview of the UK regime of deferred prosecution agreements in the Crime and Courts Act 2013, in light of the practice of pre-trial diversion in the USA and the lessons learnt to date. The effectiveness of this new prosecutorial tool is discussed on the basis of judicial statistics and other available data. The transformation in the American system of corporate criminal liability, through guidelines disseminated by the Department of Justice and by the Securities and Exchange Commission, shows an increasing emphasis on two main topics: (1) corporate cooperation with authorities in the prosecution of individuals and (2) corporate governance. In this regard, the article argues for a new concept of corporate blameworthiness, which it seeks to affirm based on the theory of ‘reactive fault’. The article furthermore reflects on problems with regard to the framework of corporate rehabilitation, while outlining possible remedies against prosecutorial abuses.