Earlier this year, the Singapore Parliament passed the Criminal Justice Reform Act 2018 (the Criminal Justice Act) introducing, among other things, a formal legislative framework for the Public Prosecutor to enter into deferred prosecution agreements (DPAs) with corporate offenders to resolve misconduct. This change represents a significant shift in Singapore’s approach towards corporate wrongdoing, and aligns Singapore more closely with global trends.
Here are five things you should know about this development:
- Singapore’s new DPA regime is modelled on the UK’s approach: Singapore’s DPA regime is broadly similar to the UK’s approach to DPAs. Under this approach, various conditions may be imposed on the subject company. DPAs are also subject to judicial approval. However, unlike in the UK, Singaporean authorities are not required to issue any guidance on DPAs.
- Shift in prosecutorial emphasis on personal liability: When addressing corporate/ white-collar crime, Singaporean prosecutors have traditionally focused on the prosecution of the individuals who perpetrated the misconduct. This was due to a concern that ‘innocent’ stakeholders (such as other employees, shareholders and creditors) may be adversely impacted by a corporate prosecution, especially if a conviction leads to the demise of a corporate body. The introduction of DPAs therefore represents a significant shift in focus.
- Importance of compliance: A necessary consequence of the shift in focus on personal liability to corporate liability is the need for corporates to pay greater heed to corporate compliance. Prosecutors are likely to be concerned with the internal governance structures within an organisation and its compliance efforts in determining whether an organisation ought to be held accountable for the misconduct of individual employees, and if so, whether the public interest justifies a DPA.
- DPAs – an emerging trend: In recent years we have seen an emerging trend of jurisdictions introducing DPAs. France and Argentina have recently introduced DPAs, and Australia and Canada are not far behind. The positive experience of the US and, more recently, that of the UK have certainly shaped the views of legislators around the world about the robustness of DPAs as a prosecutorial tool to resolve corporate misconduct.
- International enforcement cooperation: The prelude to the introduction of DPAs in Singapore was the participation of Singaporean authorities in the 2017 global resolution concerning the conduct of a Singapore-based marine services company in Brazil alongside US and Brazilian authorities. The move to introduce DPAs could possibly have been influenced by the growing cooperation between enforcement agencies/ regulators, as a means of facilitating such international cooperation.
The introduction of a formal legislative framework for DPAs is but a piece of the puzzle in Singapore’s efforts to ensure companies’ compliance with the law. The government will need to ensure that its anti-bribery laws keep pace with international developments and the business reality.