Plea Negotiations... Is The Reality As Good As The Promise?

The issue of plea negotiations has prompted reaction from both defence and prosecution. Here, we take a look at what they can offer a solicitor and their client – and whether they are the way forward

The arguments in favour of plea negotiations have been made in the past by both prosecution and defence representatives.

In its recent report, “Deterring and Punishing Corporate Bribery’’, Transparency International looks at the issue and reconsiders many of the arguments. And many of these arguments are worth revisiting in an attempt to get to the bottom of the perennial question – are plea negotiations the way forward?

There is a cost benefit that can be pointed to in any argument in favour of plea negotiation. Arranging an outcome to avoid a trial will inevitably help save the public purse – and that is more noticeable in fraud and business crime than in most, if not all, other types of case. In 2003-04, serious fraud accounted for just 0.2% of Crown Court cases and yet it took up 16% of the Legal Aid budget. The intricate, timeconsuming nature of most fraud and business crime cases makes any such trial lengthy, complicated and costly. With this in mind, plea negotiation looks even more attractive an option for such cases. It is also worth considering that such trials can prove too much for jurors, who are often left bored and confused, wading through masses of complicated evidence. The implications of this alone are one point in favour of plea negotiations.

At Rahman Ravelli, plea negotiations can be an everyday part of our life. Representing corporate clients nationally and internationally in some of the biggest prosecutions, we are aware of the value of plea negotiations. In regular discussions with prosecuting authorities around the world, plea negotiating is an issue that recurs regularly. Prosecutors can see it as a means to an end while defence counsel can also use it to benefit their client.

As an alternative, therefore, plea negotiation has its supporters. Under Section 152 of the Powers of the Criminal Courts Act 2000, a judge can give credit for a guilty plea. Such scope almost ushers in the concept of plea negotiation as a recognised tactic to keep the wheels of justice running smoothly and effi ciently. Yet in its report, Transparency International emphasises that any early plea of guilty cannot be the be all and end all. According to TI, any such agreement can be of great use in cases such as those involving overseas bribery, but the sentencing that results must refl ect the criminal conduct that led to the prosecution. Any lesser charge agreed between prosecution and defence must pass the evidence and public interest tests, any plea made should be accurate and reasonable and any discussions carried out regarding plea negotiation must be transparent.

The 2009 Attorney General’s Guidelines introduced the possibility of pleas being agreed prior to a person being charged in serious and complex fraud cases. Such agreements are determined by the size of the case, its international dimensions and the public interest in using plea negotiation. As a result, all overseas bribery cases settled with the Serious Fraud Offi ce (SFO) have involved pleas being agreed prior to formal charge. Transparency International believes that this is likely to be the case in the future as it benefits both sides: the public purse saves money and there is a degree of certainty and speed in the way the accused is punished.

Plea negotiation, therefore, can be seen to have benefi ts. Yet it cannot be viewed as the great cure for all the problems facing fraud and business crime cases.

The Attorney General’s Guidelines state that plea negotiations should be used to narrow the issues in a case to reach a just outcome as early as possible. They should be conducted in a fair and reasonable way, with no pressure on a defendant to make admissions. A plea agreement must reflect the seriousness and scale of the offence while giving the court adequate sentencing powers.

Under the Guidelines, prosecutors should not start plea negotiations with a defendant who is not legally represented or whose criminality has not been established. Prosecutors also need to be alert to any defendant‘s attempt to use plea discussions as a delaying tactic. To begin negotiations, prosecutors should send a letter to the defendant’s legal team, asking for a reply by a certain date as to whether they want to enter plea talks. If this offer is accepted, prosecutors must then send another letter outlining how discussions can be conducted and addressing the use and confi dentiality of any information used in discussions.

Negotiations – either face-to-face or via correspondence – should involve the prosecution giving a written summary of the allegations against the suspect, the available evidence and the list of proposed charges.

The Guidelines state that prosecutors must give an undertaking that any of information provided by the defence in plea negotiations (and even the fact that defence has taken part in these negotiations) must remain confi dential and cannot become evidence in a prosecution should negotiations fail.

Defence must give a similar undertaking regarding confidentiality. However, prosecution may rely on a signed plea agreement as confession evidence and can use evidence (for the matter under discussion or other offences) resulting from enquiries prompted by information that arises in plea negotiations. Prosecution may also reserve the right to bring other charges if more information comes to light after a plea agreement is made.

Negotiations should involve prosecutors being transparent with the defendant: meaning that a full and accurate record of discussions should be kept and that the defendant has enough information to play a proper part in negotiations. This should result in a written plea agreement going before a court that represents the facts and a matter agreed in discussion, includes charges refl ecting the seriousness of the offence and a defendant’s admission of guilt and gives the court powers to pass an appropriate sentence.

Transparency International acknowledges that any serious and detailed talk of sentence reduction in exchange for a guilty plea cannot begin in earnest until late in the investigation, when a person has been charged. It is at this stage that the defence will be seeking full disclosure of the evidence. And it is only then that a defence team can negotiate from any position of strength.

Transparency International acknowledges that any serious and detailed talk of sentence reduction in exchange for a guilty plea cannot begin in earnest until late in the investigation, when a person has been charged. It is at this stage that the defence will be seeking full disclosure of the evidence. And it is only then that a defence team can negotiate from any position of strength.

Even if the funding is in place to enable a defence solicitor to enter plea negotiations, there may be other reasons why such discussions are not possible.

If the prosecution has not disclosed much of the evidence it has against the accused – or even declared just how much it may or may not have – there is no way a defence solicitor can enter into realistic negotiations. They would not be representing their client’s best interests if they agreed to a guilty plea only to fi nd out later that the prosecution has little or no evidence. Alternatively, they could advise a client not to accept any kind of plea deal and then discover that the authorities have masses of high-quality evidence against him – evidence that would have made it in their best interests to agree a deal before trial.

For these reasons alone, there needs to be more careful consideration of plea negotiation before it is regarding as a cure-all for the long, drawn-out procedure that it a serious fraud trial.