In our previous article entitled ‘Attorney General’s Guidelines on Plea Discussion in cases of Serious or Complex Fraud ’ we discussed the new provisions that came into force in May 2009.
It is clear from the Attorney General’s Guidelines that a substantial amount of work will have to be undertaken by defence teams once early plea discussions have been invited by the Prosecutor.
Moreover, the discussions cannot simply involve the defendant’s solicitor because such discussions will form the basis of guilty pleas tendered to the Court in due course. It is important, therefore, for counsel to be involved at this early stage.
At the time of the Guidelines coming into force there was no provision for funding in respect of early plea discussions.
As from the 1st August 2009, Provisional Representation Orders can be granted, thus ensuring that adequate funding is in place for solicitors and counsel involved in pre-charge negotiations.
Grant of Provisional Representation Orders
Application must be made to the Legal Services Commission.
Before an Order can be granted the Commission need to be satisfied of three things. The first, rather obvious, provision is that the individual must be involved in an investigation. Secondly, there must be an invitation letter from the Prosecutor. Thirdly, in the opinion of the Commission, a trial in this matter would be likely to last more than 25 days.
In view of the definition of a serious or complex fraud one would assume that any potential trial would almost always be likely to last more than 25 days.
Withdrawal and Extension of Provisional Representation Orders
The Order lasts for a maximum of 3 months and it will automatically expire at the end of that period. The Order must also be withdrawn if the individual under investigation notifies the Prosecutor that they do not wish to enter plea discussions (in these circumstances it is questionable as to whether an application for a provisional Order would be made in the first instance).
The Order can also be withdrawn if the Contract Manager feels that plea discussions are unlikely to result in a plea agreement, or if it is not in the interests of justice for the Order to continue, or the individual is notified that proceedings are not to be instigated, or the individual applies for withdrawal of the Representation Order, or proceedings are commenced, in which case, a Representation Order will be applied for.
It remains to be seen how widespread plea discussions become and indeed which prosecuting authorities utilise them. There may also be occasions where non restrained defendants choose to instruct solicitors privately at this early stage. One would hope that, in the event of a client seeking a provisional Representation Order in a case involving early plea discussions, obtaining an Order would be relatively straightforward and that the criteria for the grant of an Order should be met in most situations.