News & what's on - Written by on Monday, September 19, 2011 23:07 - 0 Comments

The UK & plea bargaining in prosecuted cases – what change is needed to end enforcement arbitrage

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Last week we reported that in July, the Director of the SFO Richard Alderman, gave evidence to the International Development Committee, Financial Crime and Development.

In it Richard Alderman set out  what areas of the law need to be looked at, in his view, in the context of plea bargaining and corporate prosecution.  This follows a series of cases where the SFO has come under fire from the judiciary on the way it has dealt with plea agreements with corporate defendants.

The problem

Giving evidence he said:

“….Plea bargaining needs to retain and obtain public confidence if it is to be successful, and it must have judicial confidence. We are now dealing with a range of cases, particularly involving very large global corporations, where there are parallel investigations in other jurisdictions. The question arises: how are these cases to be brought to an end, given the particular issue of double jeopardy…”

namely that “once there is an agreement in another jurisdiction relating to the facts which gave rise to [an SFO or other UK] investigation that would bring an end to any potential prosecution in [the UK], because if an individual or company has been acquitted or convicted in another country in relation to a certain state of affairs they cannot be prosecuted again in this jurisdiction in relation to the same affairs.”

He continued “In my view, the corporations want certainty before the criminal justice system starts, and that is a legitimate request. On the other hand, we have to ensure that what we do has public and judicial support. My view is that that can be obtained only through having a judicial ruling before the agreement can be reached and charges are brought. “

The solution

“In terms of changes to the law, one that I am very interested in myself is this: having reflected on what happened on many occasions, it has always seemed to me that having to make that kind of settlement, even with a judge 11 months afterwards reaching a view, by myself or with advice, puts too much on the Director of the SFO. It would be far better in these very difficult circumstances, if agreement cannot be reached, to go and see a judge and ask the judge for a judicial view on it. It is not possible at the moment because with corporations these agreements must be reached before charges are brought. Under our current system, judges can be involved only after the charge. I want judicial involvement, because I believe that would provide public confidence in these decisions. We also need guidance. This may not be a matter of legislation…..What we are doing is trying to cope with these issues on a practical, pragmatic basis, but there is a need for guidance that represents the best policy views on all these issues; otherwise, we try to do it on the basis of a particular case.”

This is not the first time that the issue of plea bargains in the UK has come up.  In 2008 the UK Attorney General’s Office undertook a consultation which resulted in the Attorney General’s Guidelines on Plea Discussion in Cases of Serious or Complex Fraud.

However, under these arrangements it is “for the court to decide how to deal with the plea agreement. In particular, the court retains an absolute discretion as to whether or not it sentences in accordance with the joint submission from the parties.”

Uncertainty remains in cases where it is determined by the prosecutor that a civil settlement is not appropriate.

During the hearing the Director said:

“I am certainly looking for guidance…I think we need more guidance on lots of these issues. This Committee has an excellent opportunity to provide that guidance, which I would very much welcome.”

We strongly advocate finding a solution to end creating an environment of ‘enforcement arbitrage’ as soon as possible.

It is a complete waste of resource for the UK criminal and investigative process to be trumped by the criminal process of another jursidiction which offers effective plea bargaining and certainty.

Image © Crown Copyright 2011

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