Plea Discussions In Fraud Cases: Are The AG's Guidelines Fit For Purpose?

The Attorney General's Guidelines on Plea Discussions in Cases of Serious or Complex Fraud were initially welcomed by most criminal practitioners, not least because it was anticipated that they would bring a degree of certainty for a defendant or suspect when deciding to plead guilty. However, one year on and with the judiciary having asserted its authority over how these agreements should work in practice, there seems little if any benefit to a defendant or suspect in even contemplating going down this route.

Background

The guidelines came into being in May 2009 in response to a Fraud Review Recommendation in 2006 which called for a new framework for the conduct and acceptance of plea bargaining. According to Baroness Scotland, the guidelines were designed "to help prosecutors deal with fraud more effectively and efficiently to the benefit of the public and all parties involved" and the self-proclaimed purpose was 'to narrow the issues in the case with a view to reaching a just outcome about acceptable pleas of guilty and preparing a joint submission as to sentence.'

At the same time, the Consolidated Criminal Practice Direction (2002) was amended to provide further guidance on the procedure to be followed when embarking on plea discussions. They emphasised that the judge retains the absolute discretion to refuse to accept the plea agreement and that, fundamentally, "sentencing submissions should not include a specific sentence or agreed range other than the ranges set out in sentencing guidelines or authorities".

Since then, it is understood that only a handful of cases have involved formal plea discussions. Of these, two have been the subject of stinging criticism by the judiciary, in R v Innospec and R v Dougall.

Inherent hazards in guidelines

These cases have highlighted the difficult (if not impossible) balance to be struck between meaningful plea discussions and the views of the judiciary. Importantly, they have exposed a number of potential hazards inherent under the guidelines which any individual or corporate considering this process will need to take into consideration.

Both parties must commit to written terms and conditions and confidentiality undertakings before any discussions are initiated. These undertakings seek to reassure the defendant that any information provided in the course of the discussions will not be disclosed to a third party other than for the purposes of the agreement. However, the guidelines are not primary...