Criminal Law &
Justice Weekly
Vol.177
June 29 2013
criminallawandjustice.co.uk
Comment
The Benefits of Early
Plea Discussions
Chris Dyke considers a recent fraud case
L
436
ast month marked the fourth anniversary of the Attorney
General’s Guidelines on Plea Discussions in Cases of Serious or
Complex Fraud (goo.gl/HrA4b). They set out the process
by which a prosecutor can discuss and agree a basis of plea and
joint sentencing submissions with a defendant. When they
were promulgated, Baroness Scotland, the then AG, said the
Guidelines were designed to help prosecutors resolve fraud cases
more effectively for the benefit of the public.
Such laudable aims were not achieved in initial attempts
to apply the Guidelines. In R. v. Innospec Ltd [2010] Crim LR
665 and R. v. Dougall [2010] All ER (D) 113, the first cases
where a resolution was sought pursuant to them, prosecutorial
conduct was criticized by the judiciary. This criticism highlighted
the Guidelines’ failure to create a framework which enabled a
prosecutor to conduct meaningful plea discussions while not
fettering judicial discretion on sentence. These cases emphasized
that, even if a court accepts a plea agreement, it is not bound to
follow the basis of plea when sentencing, and joint sentencing
submissions can only go so far as to detail the appropriate
sentencing authorities to the Judge, who will form his own views
as to sentence. The Guidelines themselves, therefore, provide
little incentive for a defendant to enter into plea discussions.
However, the Guidelines have, with the support of the
judiciary and prosecuting authorities, engendered a plea
discussion system giving rise to significant potential advantages
for a defendant. A notable demonstration of this is the case of
Paul Milsom, sentenced at Southwark Crown Court on March
7, 2013. Milsom, a former equities trader, entered into plea
discussions with the Financial Services Authority (FSA) within
weeks of his arrest. He admitted one count of insider dealing
and asked that a further 15 instances, with which he was not
charged, be taken into consideration during sentencing. The
total profit from the overall trading was around £560,000, of
which Milsom personally benefitted by £245,657.
When sentencing Milsom to two years’ imprisonment HHJ
Pegden indicated he had given full credit (a discount of one-third
of the overall sentence) for his early guilty plea. However, HHJ
Pegden also indicated he had given extra credit (a discount
of over one-third) because Milsom had entered into a plea
discussion. The Guidelines do not make any provision for such
extra credit. Notably, and presumably to avoid setting a precedent
inhibiting the future exercise of judicial discretion, HHJ Pegden
refrained from publicly stating the amount of additional credit
given. The sentencing remarks are the clearest articulation yet
that an individual can reasonably expect to receive in excess of
a one-third discount where he enters into early plea discussions.
However, an unfortunate consequence of the plea discussion
framework’s informal development is that it remains impossible
for a defendant to quantify the discount he will receive.
Milsom’s case is also notable because the Judge agreed to
make a confiscation order at the sentencing hearing in the value
of Milsom’s personal benefit from his offending. The value
of Milsom’s benefit and his assets had been agreed between
the prosecution and defence within the basis of plea and joint
sentencing submission. Negotiating confiscation in parallel with
discussions on the basis of plea may strengthen the defendant’s
negotiating position in respect of both limbs, thereby securing
a preferable basis for the calculation of both sentence and
confiscation. The Guidelines are silent on confiscation, and
any agreement reached between prosecution and defence will
not bind the court. However, this case shows prosecutors are
now willing to negotiate the terms of confiscation as part of a
plea negotiation and courts can be willing to accept the joint
submissions of the prosecution and defence. This is an important
development, capable of providing a defendant with greater
certainty and control over his financial liabilities.
The procedural advantages should not be taken at face
value. A very real hazard for a defendant is that, by entering
into plea discussions, the prosecution case will not be subjected
to the usual level of scrutiny by the judiciary or jury. In such
circumstances a prosecutor might take a more bullish approach
to selecting charges or framing assertions as to the severity
of offending which might not have withstood scrutiny at a
trial. The potential benefits of entering into plea discussions
must therefore be constantly reviewed by reference to the
prosecutor’s conduct during the discussions.
There are a number of risks for a defendant who enters into
plea discussions and there clearly remains a need for the executive
to take steps to create a robust plea negotiation framework which
provides certainty about the incentives to entering an early
guilty plea. However, the Milsom case shows a plea negotiation
framework has developed which is capable of affording significant
benefits to a defendant who enters an early guilty plea on a proper
basis supported by the available evidence.
J
Author details
Chris Dyke, Solicitor at Corker Binning, a law firm specializing
in business crime and fraud, regulatory litigation and general
criminal work of all types