The United Kingdom and Europe are a step or two behind the times when it comes to corporate crime and foreign bribery enforcement.

But they are catching up.

They are even considering importing the controversial deferred prosecution agreements to settle corporate crime cases.

Kathleen Harris has been at the center of the evolution of corporate crime law in the U.K.

She’s currently a partner at Arnold & Porter in London.

Harris says that the U.K. deferred prosecution proposal is being greeted “with enthusiasm” in the U.K.

“Over the last couple of years, the Serious Fraud Office (SFO) made great efforts to try and deal with more corporate offending,” Harris told Corporate Crime Reporter in an interview last week.

“They were successful in some areas, and they received a lot of criticism from the judiciary. The connotation was – settlements behind closed doors, no one knowing what principles were being applied.”

“We first started talking about deferred prosecution agreements in 2008 at the SFO.”

“Now, it is something that has been accepted. This is good for corporate confidence overall and it’s a good way to offer an alternative to prosecutors.”

“So, in broad terms, it has been met with enthusiasm.”

“But what remains to be seen is the framework. Everybody is clear. If you are going to have these agreements, prosecutors are going to have to be clear about how they are going to support the principles of the deferred prosecution agreements. And also, there is the issue of whether there will be enough in the offer of a deferred prosecution agreement to make people come forward and settle in that way.”

“What the consultation document has outlined is the sanctioning involved with these agreements. There is going to be no opportunity to go to a judge before you have concluded your discussions with the defense side. Ultimately, the matter will remain for the court to decide – first whether they accept the deferred prosecution agreement in principle, and second what the level of punishment should be.”

“And there has been some criticism in the U.S. that the judicial approval in the U.S. is almost like a signing off process.”

“The U.K. model looks to the judge to probably take more of an active role in agreeing to it.”

Is there the possibility of a non prosecution agreement in the U.K.?

“No,” Harris said. “That is one of the things they decided against. It will only be deferred prosecution agreements. There was some reasoning put forward on that. If there is insufficient evidence to prosecute full stop, then there is really no need to move toward a non prosecution agreement. So, they preferred to stay with just deferred prosecution agreements and that is it.”

Often, the white collar corporate crime agenda is defined by strong prosecutors in the United States – Patrick Fitzgerald, Rudy Giuliani, Eliot Spitzer. Do you see that in the U.K.?

“You do,” Harris says. “The current Director of Public Prosecutions for England and Wales – Keir Starmer. Over his tenure, he has concentrated on issuing more guidance around how cases ought to be prosecuted. He updated the principles that guide how such prosecutions are made.”

“You have a new director of the SFO – David Green – who has been in place since April.”

“He has spent a lot of time making public statements – we are going to get tougher, we are an enforcement agency and we are here to investigate and prosecute.”

“They recently updated their guidance in relation to self reporting. They are saying – yes you can come in, but we give you no guarantees at all.”

“All of our decisions will be made in accordance with our principles of prosecution.”

“They can make a difference if they want to be strong in certain areas.”

“And one must not forget about how the role of a prosecutor is independent. Although at times there seems to be an uncanny link to how they approach their duties with what political statements are being made at the time.”

“The U.K. certainly recognizes that it needs to get tough with this type of offending.”

“The one area of commonality between the Department of Justice and SFO is that if this area is not well policed, then the playing field won’t be level and the legitimate business will be driven underground.”

[For the complete q/a transcript of the Interview with Kathleen Harris, see 26 Corporate Crime Reporter 46(13), print edition only.]