Introduction

A growing number of jurisdictions now permit Deferred Prosecution Agreements (DPAs), or some equivalent, to be negotiated with corporations, entailing suspension or avoidance of criminal prosecution as long as the entity meets certain conditions (King and Lord, 2018; Campbell, 2019; Hawley et al, 2020). Though certainly not uncontroversial, DPAs are seen as a pragmatic response to difficulties in pursuing corporate misconduct through the standard criminal trial process, given the evidential burdens that must be surmounted and the risks and resources involved in prosecution.

Much has been made of the differences between DPAs as initially developed and applied in the United States and their equivalents and subsequent iterations in Europe and elsewhere, as well as the concerns about oversight, review, prosecutorial overreach, fairness, consistency and transparency. Less attention has been paid to the fact that these mechanisms were formed in a common law/adversarial system, but now have gained traction in both common law and civil law contexts, albeit in more moderate and formalized configurations.

This chapter analyzes how DPAs have been defined, developed and deployed in different European jurisdictions, in an effort to identify the extent to which this is shaped by the dominant model of criminal procedure (Damaska, 1973) in a given country. Although the classification of criminal processes is complex and contested, it is still a novel and valuable lens through which to analyze the introduction and operation of DPAs. Indeed, the common law/civil law distinction has particular salience given the imminent departure of the United Kingdom from the European Union (EU), insofar as it left Ireland as the only common law jurisdiction in the EU. This chapter asks to what extent the models of criminal procedure shed light on the form that DPAs take, and whether their growing adoption is indication of an organic convergence or transnationalization in the response to white-collar and corporate crime (Freiberg, 2011).

First, this chapter describes DPAs and cognate mechanisms across Europe. Then, it outlines characteristics of common law and civil law jurisdictions, emphasizing how some forms of settlement have emerged in both traditions. I examine the extent to which DPAs are necessitated by common law and civil law norms and practices, and consider how they are resulting in legal convergence. These pragmatic responses to corporate crime often relate to transnational corporations and to multijurisdictional crime, explaining why some degree of harmonization is preferred.