Recent focus on the cost and effectiveness of serious cases has highlighted the absence of plea bargaining as an issue. The inevitable comparison with the US has ensured that the Government’s Fraud Review recommended that it be taken forward. Commentators from both prosecution and defence argue that significant savings in time and money would result. Whether this can be delivered in practice is doubtful.
The essence of plea bargaining is compromise on both sides, with the relationship between prosecutor and defence lawyer requiring considerable trust. Whether this exists currently is open to question; certainly there are those on both sides that feel the other is not to be trusted.
Negotiations on plea take place against a backdrop of certainty. The strength of the case and the risks involved are known to all, so this rarely involves substantial negotiation skills. In the US it is horse trading pure and simple, although in reality it is rarely pure or simple.
Timing is a key issue. For the Crown, the best time for a deal is before the investigation progresses too far, saving investigation as well as prosecution costs. For such a deal to be struck the suspect must acknowledge their guilt when there is no certainty that guilt will be established or that the prosecutor would ultimately decide to prosecute. The existing Code for Crown Prosecutor ‘tests’ could not be applied as currently drawn.
It is easy to suggest that a person knows whether they are guilty and knows that they should face up to their actions. However, the cornerstone of our legal system is the premise that the prosecution must prove the case against the accused – they are not required to admit it; a premise, lest we forget, more fundamental by far than trial by jury.
To motivate someone to admit guilt at an early stage when the evidence is not strong requires a very powerful incentive.
The Proceeds of Crime Act 2002 is increasingly important; often confiscation proceedings are as contentious as the main trial, and it is not hard to see why. When one adds Fraud Review recommendations for courts to assume wider ‘sentencing’ powers, including winding up companies, appointing receivers and disqualification from professional or commercial activities, the issues to be considered as part of a plea bargain are significant and not necessarily easily reconciled.
It has long been Government policy that criminals be divested of the proceeds of their crimes. How is this policy to be reconciled with the need for a genuine negotiation in plea bargaining? Unless prosecutors will compromise on confiscation, why rush to admit guilt when in consequence you lose all your assets? Then again, imagine the headlines if a major criminal walked away from a case with a substantial portion of their ill-gotten gains intact as part of a ‘deal’.
Bearing in mind that sentences need to be acceptable to public opinion, the court, the prosecution and the suspect, and that the current average sentence for Serious Fraud Office cases is three and a half years, there must be doubts that there would be enough leeway to provide a sufficient incentive to a suspect to admit guilt.
These proposals would also change fundamentally the nature of the solicitor-client relationship. For example, current professional rules require that the defence lawyer is satisfied that a client’s plea is a proper plea, which would be essential for plea negotiations to be effective. In circumstances where these negotiations fail, professional rules currently prevent the defence lawyer from advancing a positive defence on behalf of their client following an admission of guilt. Changes of lawyer by defendants would necessarily tip off co-accused that deals have been tried and failed.
Peter Kiernan, partner, Eversheds