Criminal Practice

A. Context

Criminal work offers many potential areas for negotiation, particularly regarding plea and the sentence. In some jurisdictions the vast majority of cases are disposed of fol­lowing plea bargains.⁴⁷ Such arrangements are accepted because they avoid the need for a trial and because the result seems fair.

⁴⁴ D Sudnow, ‘Normal Crimes: Sociological Features of the Penal Code in the Public Defender’s Office’ (1965) 12 Social Problems 255; AS Blumberg, ‘The Practice of Law as Confidence Game: Organizational Co-optation of a Profession’ (1967) 1(2) Law and Society Review 15; M Heumann, ‘A Note on Plea Bargaining and Case Pressure’ (1975) 9 Law and Society Review 515.

⁴⁵ Ross, Settled Out of Court (n 7).

⁴⁶ WH Simon, ‘Ethical Discretion in Lawyering’ (1988) 101 Harvard Law Review 1083; Gifford (n 11) at 134.

⁴⁷ See generally AW Alschuler, ‘The Prosecutor’s Role in Plea Bargaining’ (1968) 36(1) The University of Chicago Law Review 50. process, plea bargaining is usually heavily regulated. In the US for example, the terms of any plea bargain must be approved in open court.

There is no precise definition of a plea bargain. The term might include agreements whereby a defendant agrees to plead guilty to charges if a prosecutor agrees to drop others. This happens in England and Wales, although not as a result of bargaining. Prosecutors are supposed to decide charges objectively, without entering a process of negotiation with the defendant’s lawyers. The courts have also striven to control trad­ing of guilty pleas for lighter sentences. Therefore, in the English system, the potential for lawyers to negotiate the terms of guilty pleas are, at best, heavily circumscribed.

B. Determining the Offences to be Charged

i. The Prosecutors’ Discretion

In more serious or complex cases, prosecutors decide whether a person should be charged with a criminal offence and, if so, the offence to be charged.^[2943] Prosecutors must consider whether there is enough evidence to convict and whether prosecution is in the public interest.

In 2004, the government issued a Victims’ Charter.^[2945] This promised to provide a voice to victims in the criminal justice system. One of the provisions offered victims a discussion with the local office of the CPS, if they believed that the sentencing of the perpetrator in the case where they were a victim was unduly lenient. This meeting was with a view to the case being sent to the Attorney General for possible referral.^[2946] The current version of the Attorney General’s guidelines on the acceptance of pleas emphasises the need of the criminal justice system to protect the interests of victims, as guaranteed by the Charter.^[2947] There is a commitment to ensure the accuracy and reasonableness of pleas and to take the views of victims into account where possible.

Prosecutors have power to accept pleas to a lesser offence or offences charged if they consider that it is in the public interest to do so. The Code for Crown Prosecutors envisages that they may consider allowing defendants to plead guilty to some, but not all, of the charges against them, or to plead guilty to a different, possibly less serious, charge.^[2948] They have no power to make provisional arrangements with the defendant regarding confiscation, compensation, disqualification or any other aspect of sen­tence. An exception is where an offender assists investigations and prosecutions under provisions in the Serious Organised Crime and Police Act 2005.

Prosecutors can only accept the defendant’s plea if they think the court is able to pass a sentence that matches the seriousness of the offending,^[2949] particularly when the plea would enable the defendant to avoid the imposition of a mandatory minimum sentence.^[2950] Prosecutors must also consider the views of victims, or in appropriate cases their families, when deciding whether it is in the public interest to accept the plea.^[2951] It must be made clear to the court on what basis any plea is advanced and accepted.^[2952]

Prosecutors are required to consider various factors in selecting charges.

ii. Defendants

Defendants may enter pleas of guilty or not guilty to charges brought against them. They have options regarding their response. They can also admit guilt, but dispute the basis of offending alleged by the prosecution. In such cases defendants can enter the basis of plea on which they are prepared to plead guilty.^[2956] The prosecution can accept or contradict that account and, if necessary test the defendant’s evidence on those matters in a Newton hearing.^[2957] Such a hearing follows the normal principles of a criminal trial, but the prosecution is generally expected to leave the questioning to the judge.

iii. Scope for Negotiation

The official position is that the process of determining charges involves no ‘plea bar­gaining’, which the English system ostensibly discourages. It is supposedly a process where prosecutors decide the correct number and level of charge objectively. They can however, seek information from defendants and their lawyers. The process of deciding whether defendants can plead guilty to some of the charges, or to less serious charges, potentially involves a process of influencing. It inevitably involves communication regarding the possibilities at the very least. Officially, this does not constitute plea bargaining.

iv. Fraud and other Economic Crimes

a. Complex Fraud

In July 2006 the Attorney General and the Chief Secretary to the Treasury published a report on fraud cases for public consultation. It was based on the final report of the government’s inter-departmental review of arrangements for the detection, investiga­tion and prosecution of fraud. This made a number of recommendations, including establishing a national strategic authority and a national fraud reporting centre. It made proposals for the improvement of fraud trials and the possibility of establishing a ‘financial court’.

b. Indicative Sentencing

The government report on fraud cases recommended that there should be a formal plea bargaining system (or ‘indicative sentencing’) for cases dealt with by the Serious Fraud Office, the Fraud Prosecution Service in the CPS, and for serious and complex fraud cases brought by other prosecuting authorities. It was argued that the advantages of encouraging court-sanctioned agreements at the earliest possible stage include allowing the authorities to focus on other cases, savings of public money and easing the strain on defendants, victims and witnesses. The government approved the recommendations in March 2007.

As part of the new arrangements, the Attorney General issued guidelines for han­dling plea agreements in serious and complex fraud cases.^[2958] Under the guidelines, the prosecutor may initiate plea discussions with any person who is being prosecuted or investigated with a view to prosecution in connection with a serious or complex fraud, where he or she believes it advantageous to do so.^[2959] It is a requirement that the per­son being investigated is legally represented, and the prosecutor will not initiate plea discussions with a defendant who is not. If the prosecutor receives an approach from such a defendant, he or she may enter into discussions if satisfied that it is appropriate to do so.

The Attorney General’s guidelines for complex fraud cases provide that prosecutors must be ‘ transparent with the defendant, the victim and the court’.^[2960] Supplementary guidance from the Director of the CPS provides that plea discussions must be open and transparent.^[2961] Prosecutors are required to prepare and retain a full and accurate record of negotiations.

Before accepting a reduced basis of plea, prosecutors are required to communicate with the victim and, where practicable, explain the position. Finally, they must ensure that the plea agreement placed before the court fully and fairly reflects the matters agreed. Prosecutors must not agree additional matters with the defendant which are not recorded in the plea agreement or are not made known to the court.

c. Deferred Prosecution Agreements

The Crime and Courts Act 2013 provides that a ‘deferred prosecution agreement’ (a DPA) can be made with companies, partnerships, and unincorporated associa- tions^[2962] in common law cases of conspiracy to defraud, cheating the revenue and in a host of statutory offences.^[2963] It is envisaged that DPAs might apply, for example, where there is insufficient evidence to prosecute. Such agreements can only be made by des­ignated prosecutors, the Director of Public Prosecutions, the Director of the Serious Fraud Office or prosecutors designated by the Secretary of State, or by their nominees authorised in writing.^[2964] A range of sanctions are available, including fines, which must be equivalent to those a court would impose for the offence.^[2965]

The procedures for DPAs are set out in Schedule 17 of the 2013 Act, but the Director of Public Prosecutions and the Director of the Serious Fraud Office will jointly issue a code for prosecutors. These provisions are supplemented by amend­ments to the new Criminal Procedure Rules. The rules require the parties to make formal declarations to the court that the information each has supplied is accurate and complete.^[2966] They also include provision for the court to order one party to pay the other’s legal costs in proceedings for breach of the agreement.

p. Plea Bargains

a. Context

Outside of the area of economic crime, agreements not to prosecute are officially frowned upon.

b. The Approach of the Courts to Sentencing

Once the charges are determined, the scope for negotiating the core issues of crimi­nal trials, guilt and sentence, is severely constrained. The antagonism of the courts is due to the risk that the offer of a reduced sentence places pressure on an innocent defendant to accept guilt. Preventing plea bargains was intended to control a situation where an accused maintained his innocence but was convinced by his lawyer that he would be convicted. The prospect of not spending time in prison is often decisive in drawing guilty pleas.

In England and Wales, courts typically reward guilty pleas, particularly where accompanied by appropriate expression of remorse, with a discounted sentence. The Criminal Justice Act 2003, section 144 sets out the relevant factors. It provides that, in deciding what sentence to pass on offenders pleading guilty, courts are required to take into account the stage in the proceedings when the offender indicated his intention to plead guilty and the circumstances in which this indication was given. Therefore, discounted sentences are supposed to be purely in the hands of judges, not lawyers.

c. The Guidance in R v Turner

The indications of what reassurance defendants could be given on sentence when pleading guilty were laid down in 1970 in R v Turner.¹² The details of the case are instructive, both in terms of the situations that can arise and the danger that there will be perceived to be a ‘plea bargain’. The defendant was accused of stealing his own car from a garage, where it had been repaired and left on the street. When the owner of the garage found it was missing, he rang the police, who interviewed the defendant. The police officers alleged that he first told them that he had not taken the car to the garage and then, the next day that he had taken it away with the consent of the garage owner.

At the Crown Court, the defendant’s case was going reasonably well. The garage owner and his son had given evidence which had been neutral if not helpful. The defen­dant had, however, instructed his barrister to attack the police evidence. Accusing the police of lying would, however, have allowed the prosecution to bring in evidence of the defendant’s character, which included a list of relatively old convictions. The barrister therefore advised the defendant that a guilty plea might tip the balance in favour of a non-custodial sentence.

Discussions with the prosecution continued well into the afternoon, when the clerk of the court was dispatched to say that the judge wished to proceed. The barrister thought that he had received an indication from the clerk that, in the event of a guilty plea, a fine would be the disposition. This was later disputed by the clerk. In any event, after a further discussion with his barrister, the defendant changed his plea to guilty and received a four-month sentence. The Court of Appeal accepted that, on

⁷² R v Turner (Frank Richard) (No 1) [1970] 2 QB 321. the facts, the defendant was resolved to plead not guilty until his barrister’s advice was confirmed by what he thought was an indication from the judge. Therefore, the defendant’s plea should be treated as a nullity and a new trial ordered.

Having decided the outcome of the appeal in Turner, the Court of Appeal turned to what it called ‘the vexed question of so-called “plea-bargaining”’.^[2967] The Court’s advice on that issue has been the benchmark for judges and lawyers since. It was that:

1. Counsel must be completely free to do what is his duty, namely to give the accused the best advice he can and if need be advice in strong terms. This will often include advice that a plea of guilty, showing an element of remorse, is a mitigating factor which may well enable the court to give a lesser sentence than would otherwise be the case. Counsel of course will emphasise that the accused must not plead guilty unless he has committed the acts constituting the offence charged.

2. The accused, having considered counsel’s advice, must have a complete freedom of choice whether to plead guilty or not guilty.

3. There must be freedom of access between counsel and judge. Any discussion, however, which takes place must be between the judge and both counsel for the defence and coun­sel for the prosecution. If a solicitor representing the accused is in the court he should be allowed to attend the discussion if he so desires. This freedom of access is important because there may be matters calling for communication or discussion, which are of such a nature that counsel cannot in the interests of his client mention them in open court.

4. The judge should, subject to the one exception referred to hereafter, never indicate the sentence which he is minded to impose. A statement that on a plea of guilty he would impose one sentence but that on a conviction following a plea of not guilty he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential.^[2968]

So, if judges indicate what sentence they have in mind, they must not mention what they would do if the accused were convicted following a plea of not guilty. The only exception is where a judge is able to say that, whatever happens, whether the accused pleads guilty or not guilty, the sentence will or will not take a particular form. Therefore the judge may say, for example, that the disposition in this case will be a probation order or a fine, or a custodial sentence.

Since Turner, the Court of Appeal has consistently reinforced the message that the accused must have freedom to enter their plea of choice. Despite this, subsequent appeals and references by the Attorney General reveal quite different practice in lower courts. In fact, it appeared that plea bargains were routinely, if circuitously, negoti­ated.

In R r Peverett the defendant, a former school head teacher, faced multiple charges of indecent assault on schoolchildren.^[2969] He initially pleaded not guilty. Prosecuting counsel, in the judge’s presence, offered to drop some charges in return for guilty pleas on others. Defence counsel said he would recommend this to his client provided no custodial sentence was involved. Prosecuting counsel suggested a suspended sentence might be fair and would be accepted by all of the victims except one as such.

After further submissions by both counsel in his chambers the next day, the judge handed down an 18-month sentence suspended for two years. He also ordered that the defendant pay £6,500 as a contribution to prosecution costs and ordered him to register as a sex offender. The decision was reported as a surprise to victims, one of whom had apparently been led to expect imposition of a sentence of up to five years.^[2970]

The Attorney General referred the case to the Court of Appeal for review of sen­tence under powers that had existed since 1988.^[2971] Lord Justice Rose said that the case ‘demonstrates, at almost every turn, the wisdom of the authorities in this Court which have, for many years, set their face against plea bargaining’.^[2972] The Court of Appeal decided, however, that it could not overturn the sentence. The Crown, by its agents, had made representations to a defendant on which he was entitled to rely and on which he acted to his detriment. He had pleaded guilty in circumstances in which he would not otherwise have pleaded guilty. This gave rise to a legitimate expectation on his part that the Crown would not subsequently act contrary to those representations. For this purpose, the Crown and its agents were to be regarded as indivisible.

Much of the explicit criticism in a judgment that was highly critical by any standard was reserved for prosecuting counsel. It focused on his seeking out the judge in cham­bers in what was deemed an unexceptional case, his positive encouragement of a plea bargain, together with his behaviour in suggesting acquiescence to a particular sentence. The Court emphasised that

the anguish on all hands caused by this lamentable history of the matter could have been avoided had counsel seen fit to take note of what this Court has so often said about not see­ing a judge privately with regard to sentence.^[2973]

The reference resulted in publication of the Attorney General’s guidelines on the accep­tance of guilty pleas in 2000. The thrust of the guidelines was that prosecutors should not give any indication of favouring a particular sentence. Indeed, in suitable cases, they were even required to remind the court of the possibility of review. This created considerable difficulties in being fair to defendants.^[2974] Additional issues arise as a result of the Victims’ Charter and consequent amendments to the guidelines. It may be necessary to show that every effort has been made to take the views of victims into account when accepting a plea.

d. Indicative Sentences

There were apparent problems of fairness when, despite defendants receiving an indication of sentence from the judge before pleading guilty, sentences were still reviewed. It was thought that this problem was resolved when the Court of Appeal allowed advance indications in R v Goodyear,^[2975] and the Attorney General guidelines were revised accordingly. This did not resolve all issues, however. The Court of Appeal subsequently reviewed a case in which there had been ‘a Goodyear indica­tion’, because prosecuting counsel had failed to remind the Court of the possibility of referral.^[2976]

This decision obviously carried a significant risk of being unfair to the defendant, who had entered a plea on the basis of an indication that was later found to have been too lenient. The Court reassured itself that the defendant was not unfairly prejudiced. This was because defence lawyers had a duty to advise clients that judges’ indica­tions were subject to review, if the Attorney General considered the sentence unduly lenient. This seems to be a very peculiar conception of procedural fairness.

A further difficulty that has sometimes arisen in the acceptance of guilty pleas is where the judge has made a factual error. This may, for example, occur where there is uncertainty over when the defendant first accepted guilt. The indications are that mistakes should not be held against defendants where the Prosecution was in a posi­tion to correct the error, but did not do so.^[2977]

e. Summary: Criminal Practice Directions

The current state of practice is contained in recent practice directions on sentencing.^[2978] These provide that prosecutors can ask the judge in the case to approve a plea to a lesser charge.^[2979] Where they do not do so, thejudge can express dissent and invite reconsideration with those instructing the prosecutor^[2980] and, ultimately, adjourn the case for prosecutorial review, potentially involving the Attorney General as neces- sary.^[2981] Prior to entering guilty pleas, defendants may seek an indication of sentence.

It is also possible for defendants to provide a basis of plea, limiting the scope of offending for which the defendant is to be sentenced on a guilty plea. Bases of plea fall into one of four categories. The first category is a basis of plea agreed by prosecu­tion and defence. The second is where there is no agreement or only partial agreement by the prosecution. The third contains mitigation without contradiction of the pros­ecution case. The fourth involves serious or complex fraud, where the basis of plea is agreed by the prosecution and defence and accompanied by joint submissions as to the appropriate sentence.^[2982]

f. Negotiation of Pleas

It seems a little strange to discuss the arrangements for acceptance of guilty pleas as negotiation, since the rules do not deal with prosecution and defence discussing the terms of acceptance. As the cases illustrate, the process is supposed to follow a strict protocol that is very much at arm’s length. Forms of communication do, however, take place and a kind of negotiation does occur, sometimes involving the judge. This can be characterised as a distributive negotiation in which defendants are in a weak position. They have relatively little bargaining leverage and the judge can veto what­ever plea agreement has been reached.

As far as defendants are concerned the process of accepting a plea is fraught with uncertainty. They are advised by their lawyers on the consequences of their actions regarding plea and, as a result of their decisions, certain outcomes are supposed to occur. Whether or not these outcomes hold depend on whether the appeal court thinks a particular outcome reasonably reflects the gravity of the offences. The excep­tion is in complex fraud cases, where the public policy of avoiding long and expensive trials has produced a regime aimed at reaching early, judge-approved plea agreements.

In cases of complex fraud, charges are more likely to have followed a negotiation between the prosecution and defendant or their lawyers. This is recognised to serve the public interest, particularly by saving the time and cost of trials. The charges brought by the prosecutor will reflect those agreed, rather than those that the pros­ecutor would necessarily have preferred if no agreement had been reached. Where a plea agreement is reached, it remains entirely a matter for the court to decide how to deal with the case.

It is considered that the risks that innocent defendants will be under pressure to accept lesser charges is acceptable. The difference in complex fraud cases from other cases is explained in the CPS Director’s guidelines for such cases by reference to the fact that defendants

are represented by solicitors experienced in commercial litigation, including negotiation. This means that the defendant is usually protected from being put under improper pressure to plead. The main danger to be guarded against in these cases is that the prosecutor is per­suaded to agree to a plea or a basis that is not in the public interest and interests of justice because it does not adequately reflect the seriousness of the offending.^[2983]

A negotiation is also likely to have occurred where there is a Deferred Prosecution Agreement with a defendant in a case of alleged economic crime. Once negotiations between the prosecutor and the defendant have commenced, but before the terms of the DPA are agreed, they obtain confirmation from the Crown Court that the DPA is ‘likely to be in the interests of justice’, and that the proposed terms of the DPA are ‘fair, reasonable and proportionate’. Once agreed, the Crown Court must also declare that the agreed terms are fair, reasonable and proportionate.

g. Making Plea Agreements that are Resistant to Review

Within the tightly circumscribed role allocated to lawyers in the process of determin­ing pleas, there are measures that sensible prosecutors and criminal defence lawyers should take. These simple steps may help ensure that pleas are secure from interfer­ence, on referral, by the Court of Appeal. For example a defence lawyer should record a realistic basis of plea in writing and warn clients that sentences can be reviewed.

Prosecutors should make appropriate representations as soon as possible, pointing out any error that might affect sentence. They should identify and agree the correct guideline and direct the judge to it, highlighting any disagreement with the defence. When an indication of sentence is given that appears lenient, prosecutors should remind the judge of the power of referral.⁹⁰

V.