Justifications and Purposes of Negotiated Justice for Corporate Offenders: Deferred and Non-Prosecution Agreements in the UK and US Systems of Criminal Justice
| Author | Federico Mazzacuva |
| DOI | 10.1350/jcla.2014.78.3.921 |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
| Subject Matter | Article |
Justifications and Purposes of
Negotiated Justice for Corporate
Offenders: Deferred and
Non-Prosecution Agreements
in the UK and US systems of
Criminal Justice
Federico Mazzacuva*
Abstract 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.
Keywords Pre-trial diversion; Deferred prosecution; Negotiated
justice; Cooperation; Rehabilitation
It is widely agreed that corporate economic crime has reached a high level
sophistication and that it causes serious harm to the economy and to its
immediate victims. Not only is it one of the causes of economic meltdown,
but also a consequence of it: necessary cuts might affect internal compliance
and monitoring actions; and companies facing economically distressed
times may look for quick solutions and, thereby, succumb to a temptation
to engage in misjudged practices or even wrongdoing.1 Thus, corporate
crime, and the struggle to handle it, have become most urgent legal and
regulatory issues.
In this regard, the approach to the Anglo-American systems of criminal
justice allows use of new prosecution tools aimed, on the one hand, at
* PhD at University of Milan-Bicocca, PhD visiting student at King’s College of London
from January to July 2013; e-mail: f.mazzacuva1@campus.unimib.it.
1 Among US authors who have recently studied the increase of white-collar crimes in
economically distressed times, see E. S. Podgor, ‘White-Collar Crime and Recession: Was
the Chicken or Egg First?’ (2011) University of Chicago Legal Forum 205; N. Shover and
P. Grabosky, ‘White-Collar Crime and the Great Recession’ (2010) 3 Criminology and Public
Policy 429.
The Journal of Criminal Law (2014) 78 JCL 249–62 249
doi:10.1350/jcla.2014.78.3.921
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