On 5 May 2009 new guidelines come into operation introducing "plea agreements" into England and Wales for cases of serious and complex fraud. These plea agreements will be made between prosecution and defence following "plea discussions" initiated by the prosecution. The government has been keen to avoid using the expression "plea bargaining", as used in the United States, and even the term "plea negotiation" has apparently now been ditched.

As long ago as 1978 the then Attorney General, Lord Silkin, established a working party to review the arrangements for the investigation and prosecution of fraud. This was followed some years later by the appointment of the Roskill Commission whose controversial report, published in 1986, included the recommendation for non-jury trials in certain fraud cases. Although that recommendation has never been implemented the influence of other recommendations, for example a requirement on the defence to disclose prior to trial the outline of their case, can be seen in more recent amendments to the criminal justice system. But government is still, 30 years later, grappling with fundamental issues revolving around the investigation and prosecution of fraud.

The introduction of plea agreements follows a consultation exercise on the topic. The idea was warmly welcomed by some respondents to the consultation, particularly the Serious Fraud Office and the Financial Services Authority. However a number of respondents expressed serious reservations, including the Fraud Advisory Panel and the Criminal Bar Association.

The intention is that in cases of serious or complex fraud prosecutors should approach the legal representatives of the accused to enter into "plea discussions", either before or after the suspect has been charged, with a view to reaching a "plea agreement".

The plea agreement would cover the charges to which the suspect agrees to plead guilty and a statement of the facts relevant to the offences. The agreement, when submitted to the court, would be accompanied by a joint submission from prosecution and defence including relevant information such as aggravating and mitigating factors in the case. The submission would indicate an agreed suggested sentence including, where appropriate, proposed compensation and confiscation orders to be made by the court. In other words, the prosecution and defence will submit to the court the entire 'package' which the court will be invited to adopt in dealing with the ffender.

However, it is central to this arrangement that the court would be under no obligation whatsoever to adopt the 'package' jointly proposed by prosecution and defence.

It follows that a defendant who makes a plea agreement can be given no guarantees as to the sentence he will actually receive when the matter comes to court. That may render such agreements unattractive to defendants.

Added to this there may be a conflict between the plea agreement which has been reached and the court's duties, for example its duties in relation to confiscation under Proceeds of Crime Act 2002 and earlier legislation. This was an issue raised in responses to the consultation, but which the government appears to have brushed aside.

It will be very interesting to see how plea agreements fare in practice over the coming months and years!

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