Fraud Trials: Plea Negotiation- Plea Bargaining

Reproduced with kind permission of The Barrister ,Trinity Term

Issue

Article by Monty

Raphael, joint head of Fraud and Regulatory

Department

Any reform, particularly one as drastic as introducing

negotiated justice must, I believe, be accompanied by an

assurance that it would not diminish the public's trust in

the fair and evenhanded dispensation of criminal justice

The decision to put the Old Bailey's cases online

reveals that until the mid-19th century judges and juries at

that Court could sometimes get through three whole trials in a

day. True, few, if any, accused were represented, but still,

such efficiency must inspire those in Whitehall anxious to see

a return to such judicial efficiency.

While the inconvenient intervention of representation by

counsel, and the necessary complexities of modern fraud cases

make this rate of progress a little ambitious, there can still

be discerned in the Attorney General's recent consultation

paper, a wish perhaps that this was not the case.

The plain fact is that full-blown fraud trials, with all

their guarantees of due process, are no longer seen as

affordable. No-one would argue against early dialogue between

prosecution and defence, but only if both parties to such

dialogue are equally matched in experience and expertise, and

both know the strength of the Crown's case and, indeed,

such weaknesses as are known only to the Crown. The

preservation of the burden of proof, and the presumption of

innocence both impose fundamental constraints on consensual or

collaborative justice. That we are in danger of forgetting this

truism is due to the failure of successive Governments to

implement coherent policies for policing white collar crime.

Indeed, this omission is true across the whole criminal

calendar. Instead, we have had decades of Royal Commissions,

Law Commissions, Working Groups, and One-Man Enquiries, all

recommending piecemeal remedies, of which some have been

adopted and others ignored, often for reasons of financial

economy.

We have been left with a plethora of prosecution agencies,

interpreting policies in their own individual ways while

dealing with a problem, the increasing threat from large scale

fraud, inefficiently and with horrendous losses to the Revenue

and the legitimate economy. We have grafted on ideas from the

inquisitorial systems of our European neighbours and borrowed

others from civil jurisprudence, while all the while

diminishing investigative resources and failing to send a clear

signal to those contemplating the commission of these serious

crimes. Whether one is caught, and if caught prosecuted at all,

has become even more of a lottery than is any way inevitable in

a free society governed by the rule of law.

Any reform, particularly one as drastic as introducing

negotiated justice must, I believe, be accompanied by an

assurance that it would not diminish the public's trust in

the fair and even-handed dispensation of criminal justice. It

must be part of a coherent policy which makes transparent why

some white collar crime, even when discovered, is met with

civil or administrative penalties, while others are not. None

are victimless crimes, so why are some visited with naming and

shaming, others by financial penalties, and the remainder by

criminal sanctions. Why, even after the latest...