In a move that will evoke comparisons with US style plea bargaining the Attorney General has issued Guidelines on plea discussions in cases of serious or complex fraud.
Director of the Serious Fraud Office, Richard Alderman refers to the measures “streamlining systems and delivering faster justice”.
The Guidelines require a Defendant to be legally represented before entering negotiations and discussions can even take place before a suspect has been charged. The Guidelines reflect a much more formal approach than the current system involving informal discussions of pleas.
Attorney General Baroness Scotland feels that the measures “are designed to help Prosecutors deal with fraud more effectively and efficiently, to the benefit of the public and all parties involved”. The Attorney General goes on to state that “the Guidelines should put discussions about plea and possible sentence on a much clearer footing in fraud cases”.
The Attorney General’s Guidelines
As from the 5th May 2009 The Attorney General’s Guidelines on plea discussions in cases of serious or complex fraud come into force.
Fraud means any financial, fiscal, commercial, misconduct or corruption. The Fraud can be serious or complex which requires two of the following factors, value in excess of £500,000; international dimension; specialised knowledge, numerous victims, substantial/significant fraud on a public body; widespread public concern; or misconduct endangering the economic wellbeing of the UK.
The decision as to whether a case is one of fraud and the level of its complexity or seriousness lies with the prosecutor.
The prosecutor is still bound by the Code for Crown Prosecutors, and must not proceed with more charges to encourage a defendant to plead guilty to a few, nor charge a more serious offence to encourage a defendant to plead to a less serious one. In circumstances where a defendant will plead guilty to some, but not all, of the charges or to a less serious charge, the Code makes this acceptable if the prosecutor assesses that the court could still pass an adequate sentence.
Plea discussions are intended to reduce the issues in the hope of reaching an agreement about acceptable guilty pleas and preparing a joint submission as to sentence.
Plea discussions can take place before charge with charges reflecting an agreement between prosecution and defence. They make take place before a criminal investigation is complete.
The guidelines have no bearing upon the existing practice of sentence indications at PCMH hearings or later in accordance with the case of R-v-Goodyear (2005) EWCA 888, rather than they are intended to be complementary.
Where a plea agreement is reached it is a matter for the court to decide how to deal with the case.
The plea agreement must reflect the seriousness and extent of any offending, it must give the court adequate sentencing powers and the prosecutor must carefully consider the impact of the proposed plea/basis of plea on the community and the victim and on the prospect of successfully prosecuting others.
The prosecutor cannot place the defendant under improper pressure, for example by exaggerating the weight of evidence.
The prosecutor must ensure that there is a full and accurate record of plea discussions, that the defendant has sufficient information to play an informed part in the discussions, there must be communication with the victim and any plea agreement must fairly reflect the matters agreed.
Initiation of Plea Discussions
The prosecutor will not initiate plea discussions with the defendant who is not legally represented. Discussions can be initiated during the course of an investigation prior to charge. Alternatively they can be initiated after charge.
Before charge the investigating officers must be satisfied that the suspect’s criminality is known.
The position must be preserved during plea discussions by, for example, Restraint proceedings prior to confiscation.
If a defendant refuses to take part in discussions the prosecutor should not make a second approach without a material change in circumstances.
To initiate plea discussions the prosecutor will send the defendant’s representatives an invitation letter which asks whether the defense wish to enter discussions in accordance with the Guidelines and which contains a set deadline for a response.
If the defense agree to plea discussions the prosecutor should send them a Terms and Conditions letter which addresses issues of confidentiality, the use which may be made of the information provided by the defendant and the practical means by which the discussions will be conducted. As far as confidentiality is concerned the prosecutor will indicate that the plea discussions are to be treated as confidential and the defendant’s legal representative will be subject to a similar requirement.
Not only will the contents of the discussions be confidential but the very fact that the defendant has taken part in the discussions should also be confidential although this does not preclude the prosecutor from relying upon a concluded and signed plea agreement as a confession, relying upon any evidence obtained from enquires made as a result of the provision of information, relying upon information provided as evidence against the defendant for any other offence and relying upon information provided in the prosecution of any others (subject to rules of evidence).
In exceptional circumstances the prosecutor may agree to different terms regarding the confidentiality and use of information but must not render the ability to rely upon a concluded and signed plea agreement as evidence against the defendant.
The Conduct of Plea Discussions
Statement of Case
The prosecution must provide the defence with a Statement of Case even when plea discussions take place prior to proceedings being instituted.
The Guidelines do not affect the prosecutor’s duties in relation to the disclosure of unused material.
Conduct and Recording Plea Discussions
Following receipt of the Statement of Case parties can agree the content of the plea discussion which may be by way of correspondence, face to face meetings or by a combination of the two. A written record must be kept of every key action and event.
Any offer to provide information or give evidence will be dealt with in accordance with section 71 to 75 SOCPA 2005, R-v-P, R-v-Blackburn (2007) EWCA Crim 2290 and guidance agreed and issued by DPP, Director SFO and Director RCP.
Discussion of Pleas
If the prosecutor is to accept a guilty plea he or she must ensure that the charges reflect the seriousness and extent of offending, the court has adequate sentencing powers, the case can be presented in a clear and simple way; the basis of plea enables the court to pass an appropriate sentence; the victims interests are taken into account and the investigating officer remains fully appraised of all developments and his or her views are taken into account.
Any factual issues need to be resolved before bringing to the proposed pleas.
Where agreement is reached as to pleas the parties should discuss the appropriate sentence with a view to a joint written submission to the court. Aggravating and mitigating features should be agreed as should personal mitigation and relevant sentencing guidelines/authorities. Submissions should be made as to the applicable sentencing range within the guideline.
The prosecutor must bear in mind all the court’s powers and include in the joint submission and relevant ancillary orders.
The statement should contain due regard for the court’s asset recovery powers.
The prosecutor must also make it clear in the course of plea discussions that the joint submission as to sentence and confiscation is not binding on the court
Liaison with another prosecutor or regulator
In the event that the prosecutor becomes aware of another prosecuting authority/regulatory body with an interest in the defendant they may involve them in the plea discussions with a view to resolving all matters in one plea agreement. The defendant should be warned that any plea agreement will not bind any other agency not involved in the agreement.
The Written Plea Agreement
The plea agreement should be in writing and signed by both parties and will include a list of charges, statement of facts and a declaration signed by the defendant to the effect that he accepts the stated facts and admits guilt.
Any agreement under SOCPA regarding giving of assistance to the prosecutor should be in a separate document.
When the agreement is signed in a case where proceedings have not yet commenced the Prosecutor will then agree for proceedings to be instituted on the basis of the signed agreement.
Prior to the defendant’s first appearance in the Crown Court the prosecutor should send to the Court enough material to allow the Judge to understand the facts of the case and history of plea discussions to assess whether the plea agreement is fair and in the interest of justice. Documentation will include the plea agreement, joint submission as to sentence and sentencing considerations, sentencing guidelines/authorities, material provided to the defendant, material provided by the defendant (mitigation) etc, and minutes of any meetings between parties.
The court will then decide how to deal with the plea agreement and the court retains an absolute discretion as to whether it sentences in accordance with a joint submission.
Failure of Plea Discussions
Plea discussions may fail or result in an outcome other than the defendant pleading guilty in accordance with the agreement.
Situations can include intervening events, the prosecutor or defendant breaking off discussions, inability to reach an agreement, the court rejecting the agreement, the defendant declining to plead guilty (perhaps as a result of the sentencing indication/Goodyear indication). If such a situation arises the prosecutor may require further enquires to be made in which case the prosecutor may delay proceedings possibly; even discontinuing.
If discussions have broken down it will be rare for the prosecutor to reopen them but he or she may do so if there is a material change in circumstances.