Plea Negotiation by fdh56iuoui


									                                 Criminal Law &                    Vol. 174
                                 Justice Weekly                    26 June 2010            

                                 Plea Negotiation
                                 Nicholas Bull reviews récent case law

         previous article [(2010) 174 J P N 169], looked at        Proceeds of Crime Act 2002 in relation to other misconduct
         the role of plea negotiation within the criminal          in Iraq.
         justice System and advocated strongly its place in             Tliomas LJ did not endorse the plea agreement and
the efficient prosecution in complex criminal cases such           sentenced Innospec Ltd to a fine to the sterling équivalent
as fraud. In récent months two cases prosecuted by the             of $12.7m. By doing so he did not allow for any allocation
Serious Fraud Office (SFO) and litigated in the courts put         of monies under a civil settlement. He stated in doing so
us in a position of being able to consider the judiciary's         that that his view was that the S12.7m was inadéquate and
attitude to its use. Tliisis also a timely point to look           he was bound by that figure with only very great reluctance,
forward as the new coalition government bas stated the             emphasizing in future cases that a Judge would be very
aim ofmerging various bodies into an "Economie Crime               unlikely to be bound in such a way again. The sentence itself
Agency" which will if carried out almost inevitably require        offers some useful insight into the judiciary's future approach
primary législation and hopefully a review of the various          to the AG Guidelines.
enforcement powers and methods of the organisations                     It represents a clear flexing judicial muscle - first, in
involved in such a merger.                                         increasing the fine to the füll S12.7m, Thomas LJ was
                                                                   reinforcing the remit of the courts as the final arbiters of
R. v. Innospec Ltd                                                 sentence; secondly, in eschewing the more flexible financial
The first case to consider is that oiR. v. Innospec Ltd [2010]     arrangements available under criminal confiscation and civil
E W Mise 7 ( E W C C ) . Tliis was a landmark case as it           recovery he was reinforcing the primacy of the courts in
represented the first use of the Âttorney General's Guideline on   sentencing.
Plea Discussions in Cases of Serious or Complex Fraud (Attorney         Thomas LJ affirmed R. v. Under-wood [2005] 1 Cr App R
General (AG) Guidelines) and as such, Thomas LJ sitting            (S) 90, subsequently codified in the Consolidated Criminal
at Southwark Crown Court, gave formai written sentencing           Practica Direction, that while a prosecutor could agrée a
remarks setting a steer on the AG Guidelines future use.           basis of plea, a court was not bound by any such agreement
Innospec Ltd was a wbolly owned subsidiary of Innospec             and must consider separately whether évidence should called
Inc, a US company. An investigation was started by the             to establish the basis on which it is to sentence.
US Government in July 2006 into Innospec Inc, covering                  Where the AG Guidelines are used a Judge should be
not only Indonesian bribes but other bribes and criminality        provided with füll détails so that he can understand the
including breach of sanctions to Iraq (pre and post Saddam         facts of the case and the history of such a discussion. This
Hussain) and Cuba. The SFO took up its own investigation           is important as it is for the Judge to make an assessment of
in May 2008 foilowing officiai notification by the US and          whether any agreement is fair and the interests of the justice.
concentrated on the activities of the subsidian' Innospec Ltd.          It was not appropriate to put forward agreed submissions
    In December 2009, in an effort to settle proeeedings           involving a single figure or sentence - additionally
Innospec Inc offered to pay in cash, 125.8m over the period        submissions as to sentence must be in line with sentencing
to December 31, 2013 and a further S14.4m depending upon           guidelines and authorities with any document setting out
future earnings. The agreement was made as füll and final          the appropriate ranges. This effectively curtails the practice
settlement of ail outstanding issues both in the US and UK,         of any further international agreements. Indeed Thomas LJ
and was accepted by parties, including the SFO, subject to          indicated he was not happy of the court being placed in the
the approval of the courts in the US and the UK. This offer        position of having to accept S12.7m as being the limit of any
was accepted because while it was agreed that the fines and         fine. In this case Thomas LJ treated the omission of such an
other penalties that might hâve been imposed in the US and          approach as an ovcrsight, but indicated that the document
UK combined stood at some £550m such a sizable fine would          could be misconstrued as being a document the court was
almost certainly hâve resulted in the end of Innospec as a          had originally meant to merely rubber stamp.
going concern. As far as the UK aspect was concerned this               That it is primarily for the defence to make submissions as
was agreed and put into writing under the AG Guidelines             to financial information with respect of a fine to be imposed
before Tilomas LJ that the proportion to be paid within che         and that a court is greatly assisted when a prosecutor's analysis
UK Jurisdiction should be S12.7m, of which S6.7m was to             is put before a court. Thomas LJ thus implied that as far as any
be allocated to a fine or confiscation in the Crown Court           décision as to the limits on what a company can and cannot
with the balance being subject to a civil settlement under the      pay, that should rcmain firmly within the courts remit.
Criminal Law &                                                     Vol. 174
Justice Weekly                                                     26 June 2010            

    It is for the prosecution to exercise its discrétion as        S O C P A coopération (and the potential for more) and
to the charges to be preferred in a case and it is for a           allowing for early reléase provisions, the court suspended
prosecutor to indícate his acceptance of any plea and the          the term. The court reasoned that the défendant could bave
whether it reflected the criminality. In respect of this aspect    expected a two-year sentence if he had pleaded guilty with
Thomas LJ did not trespass into considering what powers            no coopération, given that an individual would at most serve
could be exercised by the courts on a prosecutor if it had         half ofthat all the défendant would hâve gained for his
concerns.                                                          coopération would bave been around four to five months
                                                                   less time in prison. This was carefully worded not to créate
R. v. Dougall                                                      a presumption of a suspended sentence for cases involving
Robert Dougall ([2010] E W C A Crim 1048) pleaded guilty           fraud or corruption but the court did say that where sentence
to conspiring with a company known as Depuy International          with mitigation:
Limited (of whom he was an employée) and others to
make corrupt payments to professionals working within                 "Would be 12 months imprisonment or less, the argument
the healthcare System of Greece between February 2002                 that the sentence should suspended is very powerful. This
and January 2006. During the relevant four-year period                resuit will normally follow. This seems to us to face the
sales to Greece by Depuy were in the région of .OOm, with             practical realities and produce a pragmatic answer to the
approximately ¿4.5m of corrupt payments made to health                problem." (para.37.)
officiais and doctors.
    The défendant was interviewed under caution by the SFO         Some Conclusions
and gave what amounted to a füll confession Co the Cotality of     Most of the conclusions reached in the previous article
the matters. He agreed to enter into agreement under s.73 of       still stand as to the potential benefits of plea negotiation,
the Serious Organized Crime and Police Act 2005 (SOCPA)            but it is clear that for the effective use of plea negotiation
and gave a witness Statement pursuant to that. The défendant       to become widespread there now needs to be primary
also entered into negotiation under the A G Guidelines by          législation. O n e can appreciate why the judiciary felt
which joint submissions were made between himself and              constrained to act as it did in each of the above cases.
the SFO. It was agreed in mitigation that he himself made          However, thèse approaches will not further the use of
no gain from what was a corporate enterprise, and that             plea negotiation. First, there is an issue of certainty - a
corruption of the form undertaken was widespread within            défendant entering into negotiation needs to know
Greece. Had défendant fully cooperated with che SFO's              that any agreement bas some teeth and provides some
investigation and his criminality involved the knowledge,          guarantees - clearly that is not currently the case.
consent and participation of individuáis in position of            Secondly, if one is tied so closely to sentencing authorities
responsibility considerably more senior to the défendant           and guidelines, which are often conservative in approach,
(both in Depuy and it's parent Company Johnson Ôc Johnson).        it is very hard to envisage what gain a défendant might
     Bean J at Southwark Crown Court sentenced Robert              bave from taking part.
Dougall to 12 months imprisonment; ignoring the suggested               If there is a ray of hope for plea negotiation as it stands
plea agreement of a 12-month suspended sentence.                   now it is the pragmatic approach taken by the Court of
Unsurprisingly, the matter was appealed and in allowing the        Appeal in R. v. Douga/l but this the reality this is only going
appeal and suspending the sentence the Court of Appeal             to help those who are at the very lower end of criminality.
took the foilowing view.                                           W h a t the Court of Appeal bave done though is to highlight
     It affirmed R. v .Innospec and the role of Judge within the   the power of the suspended sentence as a carrot and
rule of law as final arbiter of any sentence regardless of any     hopefully this might lead to the potential previously put
agreement between the prosecution and defence.                     forward of special suspended sentences for crimes, which
     It overtly criticized the SFO in its suggestion of 12         would encourage whistleblowers.
 month suspended sentence and submissions supporting this               Finally, it will be interesting to sec what happens now
assertion described them as "advocacy" though recognized           to M r Dougall - will his testimony be used in a further
at the time of its formation, R. v. Innospec had not been          trial or trials, which would valídate the thinkin g behind
available by way of guidance.                                      the S O C P A process and plea negotiation as a whole, or
     It was particularly critical to the implied submission        will no further prosecutions now take place and the S F O
that any coopération must automatically result in suspension       treat this individual prosecution as a success in its own
otherwise there being no realistic incentive for being involved    right.
SOCPA coopération to which the court replied at para.32:                If the former is true then this will be a powerful
                                                                   message to crimináis that coopération is the way forward,
   "We disagree. No sentence follows more or less                  if the latter then it will send the message that it is
   automatically. The suspended sentence should only               dangerous and uncertain to cooperate and much the safcst
   be imposed where there are particular features of the           cause of action when under investigation is to say little or
   appellants involvement in the crime, including matter of        nothing.                                                         SS
   mitigation, which justify it. That is fact specific."

    However, recognizing the low sentences for this type           About the author
offence, and given at least the halving of a sentence for          Barrister, Old Bailey Chambers

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