Letters roundup - 25 February 2019

Ditch US-style DPAs

To their fans, deferred prosecution agreements (DPAs) are the ‘win-win’ of justice: they come at minimal cost to the taxpayer, raise revenue for prosecutors’ offices and, as individuals are often indicted as part of the deal, wrongdoing is not seen to go unpunished. Yet the acquittal of three former Tesco executives is a stark reminder of just how ill-conceived it is to employ US-style DPAs in English criminal law. 

A DPA creates an inherent conflict of interest between a company and its employees. They are a convenient way for a company to limit damage to its reputation, instead allowing it to collude with its lawyers and prosecutors to identify the ‘bad actors’ of the company who are left to fend for themselves, so as to demonstrate that the company itself is not corrupt. This agreed narrative is put before a judge who can then determine (as was the case with Tesco’s DPA) that its publication be delayed so as not to prejudice any future criminal proceedings against individuals. 

It is astonishing that the evidence put forward by the SFO against the former executives of Tesco was so poor that consecutive judges ruled it should not even be put to a jury for deliberation. Three innocent men lost their jobs and their reputations, and endured years of stress, on the back of such sparse evidence.

The SFO, for its part, seems entirely unapologetic, disingenuously quoting the narrative of the DPA as the evidence of criminal activity, for which the company had acknowledged its guilt. 

Yes, DPAs may be expeditious, but they do not accord with the fundamental presumption of innocence that is the bedrock of our criminal justice system. The government should think again.

David Bermingham 
One of the ‘NatWest Three’, extradited to the US in 2006

We want to hear from the defence

HMCPSI, the independent inspectorate of the Crown Prosecution Service, is conducting an inspection of the handling of correspondence sent by the defence to the CPS. To allow us to have as full a view as possible to support the evidence for the inspection, we would welcome any views from defence firms or defence solicitors in the CPS areas that we are visiting. We are inspecting: CPS East Midlands; CPS North East; CPS West Midlands; and CPS Yorkshire and Humberside. 

I want to hear their assessment of the performance of the CPS locally, including what works well and what needs improvement, based on their experience and contacts. The survey is non-attributable and the inclusion of the name of the individual or firm replying is optional. It would be helpful if the survey is completed by 8 March. To access the survey, see HMCPSi Thematic Inspection: Handling Defence Correspondence 2019; the password Password1 will need to be entered when prompted.

The better the response, the better informed will be the resulting report. This will help drive improvement by the CPS service.

Kevin McGinty CBE
HM Chief Inspector, HM Crown Prosecution Service Inspectorate, London WC2

Supporting freelancers 

The article ‘News focus: A freelance life off the legal treadmill’ (11 February) is the first I can recall seeing concerning freelance, consultant solicitors. It has, for me, highlighted the dearth of references in the Gazette to support from the Law Society specifically aimed at freelancers. For instance, there was nothing about the impact the IR35 tax change might have for those in the public sector and now, the private sector.

I looked in the article for information about what proportion of the profession works as freelancers, or via agencies, but there was no information in that respect. If the ‘landscape’ is changing, as the report says, then there needs to be shift in Chancery Lane and a move to support freelancers, as well as more items in the Gazette on freelancers’ challenges.

Timothy J Chick
Freelance consultant solicitor, Brighton 

Life on the frontline in child care cases

In reading the otherwise excellent article ‘Coping with a care crisis’ (Gazette, 11 February), I was disappointed to note the lack of comment from local authority child care lawyers. I would make several observations from our vantage point of working within local authorities and closely with the courts and other stakeholders. 

First, the requirement for care cases to be completed within 26 weeks was a sensible measure. I have just dealt with a case where the original care proceedings took four years to complete! It cannot be right for a child to be left in a state of uncertainty for that length of time – and we do not want to return to those days. That said, there will be cases where a little more time is needed to ensure that the correct decision is reached, and so the 26-week requirement must be applied with a degree of common sense and good judgement. 

Adoption is, and should remain, an important option for children needing permanence where they cannot live with their birth parents. The trend towards use of special guardianship orders has had more to do with the effects of the Re B and Re B-S cases and less to do with the pressure to reduce delays. Those cases had the effect of making adoption more difficult and opened up adoption plans to greater challenge at the latter stages of the process, when the aim of the Adoption and Children Act 2002 was to deal with parental opposition at an earlier point. 

Second, I do not accept the view advanced by the president of the Family Division that local authorities do not do enough to divert cases away from the courts. We have exhaustive procedures in place under the Public Law Outline to try to resolve issues without recourse to time-consuming and costly court cases. Indeed, we often face criticism for not bringing cases to court quickly enough and are subject to damages applications under the Human Rights Act, which only drains further scarce public funds which could be better spent on protecting vulnerable children.  

The Children Act 1989 is, as the article suggests, a good piece of legislation. Unfortunately, it has not always been interpreted in the best way for the benefit of vulnerable children.

Graham Cole 
Deputy lead for children’s services, Lawyers in Local Government, Luton