Under the recently enacted Criminal Justice Reform Act, Singaporean law now enables prosecutors to enter into Deferred Prosecution Agreements (DPAs) with corporates. This means prosecutors may choose not to pursue charges on the condition that the suspected corporate agrees to measures such as the payment of financial penalties, the implementation of appropriate compliance regimes and continued cooperation in investigations.
The new Singaporean framework bears obvious resemblances to DPA legislation in the UK. In particular, any proposed DPA is subject to confirmation by the High Court that it is in the interests of justice, and that its terms are fair, reasonable and proportionate. In addition, the court's judgment, the DPA itself, and a statement of facts must be published.
A further similarity is that DPAs are available only to corporates and only in relation to a specified set of offences. In the case of Singaporean DPAs, the qualifying offences include corruption, money-laundering and offences relating to the receipt of stolen property.
There are, however, two key differences between the UK and Singaporean regimes. First, whereas the Director of Public Prosecutions and the Serious Fraud Office (SFO) were required to publish – and have published – a Code of Practice on the use of DPAs in the UK, there is no corresponding obligation on the Singaporean authorities. Second, Singaporean criminal law does not equip prosecutors with the type of wider net for corporate liability offered by the "failure to prevent" model in the UK Bribery Act 2010 or the UK Criminal Finances Act 2017 (see our earlier blog on this model of liability here). In most cases, the charges underlying a Singaporean DPA will need to tie criminal responsibility to the relevant company's "directing mind and will".
This combination of an absence of guidance on the use of DPAs and the short reach of corporate criminal liability may mean that, as it stands, few corporates in Singapore will feel inclined to self-report. It is likely, however, that the new DPA provisions are only the latest step in a wider series of reforms, both in Singapore and across the globe, as governments worldwide continue to stretch the net of corporate criminal liability.
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