Prosecution Deferred, Prosecution Exempt: On the Interests of (In)Justice in the Non-Trial Resolution of Transnational Corporate Bribery

Abstract

Nation-states face regulatory and enforcement dilemmas when dealing with corporations operating in international commerce that are implicated in the bribery of foreign public officials. As part of the regulatory landscape, non-Trial resolutions, and Deferred Prosecution Agreements (DPAs) specifically, have emerged as a prominent method for gaining leverage against major implicated corporations. This article analyses how judges in England and Wales discursively rationalize the approval of DPAs, arguing that three interdiscursive mechanisms (deviance elastication; corporate dissociation; and, anticipatory offsetting) serve to underpin and communicate constructions of DPAs as in the interests of justice. Relatedly, the conditions of use of DPAs have generated a socially problematic enforcement infrastructure, whereby corporates are being exempt, not just deferred, from criminal prosecution.