Partner Article

The Introduction of a Plea Negotiation Framework for Fraud Cases

With Watson Burton LLP Law Firm

In response to Recommendation 62 of The Fraud Review published in July 2006, the Attorney General appointed a working group to devise a plea negotiation framework for fraud cases. The fundamental proposal is that the parties conduct confidential negotiations and make a written agreement which includes a guilty plea, agreed facts and a recommended sentence which they will submit to the court.

Historically plea-bargaining has been absent from English law to maintain judicial independence and to prevent a defendant being pressurised into pleading guilty by the prospect of a lower sentence. Recent developments suggest a change in the courts’ attitude.

Without any formal procedure, the current practice is that parties may conduct informal discussions without keeping records and the victim or defendant may even be unaware of its existence. These discussions usually take place after charge therefore investigative expenses are significant. On the other hand an informal discussion will protect the interests of the victim and defendant if they are represented.

The advantage of plea negotiations is that a fair and transparent agreement is reached early on. This saves time and therefore costs associated with a complex investigation and lengthy trial. The extra resources can be used to tackle other crimes and the burden will be reduced on victims, juries, witnesses and the court.

1. before charge the Prosecutors and suspect can agree a plea, agree no other charges will be brought and an agree an appropriate sentencing range;
2. the guilty plea should reflect the seriousness of the offending, provide the court with adequate sentencing powers and engender public confidence in the outcome;
3. the Prosecutor decides the charge;
4. the written plea agreement will be submitted to the Crown Court;
5. the plea agreement will be considered at an open hearing in the defendant’s presence;
6. the judge has absolute discretion to accept, reject or defer a decision on the plea agreement;
7. if the plea agreement is accepted it forms the basis of the sentence; and
8. if the plea agreement is rejected the normal court timetable will apply, therefore once the defendant is charged a stay of proceedings, adjournment or discontinuance may be granted to enable the Prosecution to investigate further and consider further charges.

Despite assurances from the Attorney General that the framework will be designed to fit the English legal system, the judiciary are concerned that it will mirror the US system of plea bargaining. The Council of Circuit Judges argues the court will not have the absolute discretion to accept, amend or reject an agreement. In reality, an investigator will not know the full facts at an early stage. Therefore, neither will the court. Consequently, if the defendant has admitted to a minor offence, a lower sentence will be passed than if further investigation had allowed a more serious offence that has in fact been committed to come to light.

If you have any comments or questions about this article or any litigation matters, please contact Heather Russell of Watson Burton LLP at heather.russell@wastonburton.com

This was posted in Bdaily's Members' News section by Ruth Mitchell .