Top judges are deeply concerned about plans to introduce 'plea negotiation' in fraud cases.

A move to US-style ‘plea bargaining’ in fraud cases would undermine British justice, leading judges have told the government.

The comments, from the Council of Circuit Judges, will make uncomfortable reading for the Attorney General. Lady Scotland insisted in April that the plans to which the judges were responding – although designed to reduce the number of long, expensive fraud trials – would not ‘mirror’ the US system of plea bargaining.

‘This is plea negotiation,’ she told me at the time. ‘What we are helping the parties to do is to consider, at the earliest possible opportunity, the reality they both face.’

The seriousness of an alleged fraud might be relatively clear to investigators early on, she explained. ‘But if they are going to take a case to trial, they will have to investigate the minutiae in order to prove every jot and tittle.’ That could be hugely expensive. So she wants both the prosecution and defence to consider the consequences of a contested trial before the bills start mounting.

If the defendant were willing to plead guilty at a level of culpability that the prosecution regarded as acceptable, a judge would consider the proposed plea together with the prosecutor’s reasons.

‘The final arbiter of whether that settlement agreement is acceptable will be the judge,’ Lady Scotland said.

But that is not how it would work in the real world, according to the judges. Investigators might not know the full extent of the alleged wrongdoing at an early stage – so neither would the court. If the defendant had admitted only a relatively minor offence then the judge would have no option but to pass a low-level sentence. ‘It’s a fraudster’s charter,’ one judge told me.

Lady Scotland insisted that plea negotiations were very different from a US plea bargain at the door of the court, which the court would have no grounds for rejecting. But the judges are not convinced. ‘While the consultation seeks to distinguish between "plea bargaining" and "plea negotiation",’ says the Council of Circuit Judges, ‘to many there will be no discernable difference.’

In the council’s view we would be importing the US system, albeit under a different name. And that’s what really worries the judges. In the US, they explain, ‘there are concerns about unfair pressure, overcharging to secure a plea to something and a system that, in many instances, is based on elected officials and elected judges answerable politically.

‘We have only to look at the way that criminal justice has been used for political ends in the UK, and the result that has had on the prison population, to make the point.’

Speaking through a criminal sub-committee chaired by Judge David Swift, the circuit judges express concern that arrangements for tackling serious fraud might become routine for other offences. ‘We are fundamentally opposed to an undesirable descent into "plea bargaining" in all types of case,’ they say in their submission to the Attorney General.

I would also expect the circuit judges to come out against another of Lady Scotland’s fraud-busting plans – although this one was not announced until July and the consultation period is still open. The idea is that criminal courts would be able to put fraudsters out of business in the way that civil courts and professional bodies do already. Crown Courts would be able to wind up companies and prevent offenders from practising as estate agents, financial services providers or solicitors.

Not barristers? ‘It is the solicitors’ profession rather than the bar which is most at risk of fraud because it is solicitors who handle client funds and are more intimately involved in commercial transactions which are open to abuse,’ the government says in its consultation paper. ‘Instances of barristers committing fraud in the course of their professional practice are effectively unknown.’

This could change as a result of the Legal Services Act. But for now, says the consultation paper, ‘there does not appear to be justification for giving the Crown Court regulatory powers in respect of the bar’.

But why give judges responsibility for striking off solicitors? Surely there are regulators to do that sort of thing?

Of course there are, but it all takes too long, says the consultation paper. The Crown Court could strike off an offender as soon as he is convicted. And why wait even for that? The judge could strike a defendant off as soon as an investigation is launched, or even if the defendant is acquitted.

Seriously? A solicitor could be found not guilty of any offence and still have his livelihood taken away by a circuit judge? Sure, says the government – the powers would be available ‘as an interim measure pending determination of the criminal charge, and in the event of an acquittal as well as a conviction’.

Wouldn’t this be a breach of the right to a fair trial? No, says Lady Scotland, because the powers are preventative rather than punitive. So it would be the civil standard of proof used.

And why stop there? Why not give prosecutors a say in striking off solicitors? That, in effect, is what Lady Scotland is proposing when she says ‘professional disqualification... could be included in a negotiated plea agreement’.

So that’s how it all fits together. Along comes an investigator who thinks you are too close to a dodgy client. ‘We won’t prosecute you,’ says the investigator, ‘if you just agree to let this judge cut off your livelihood. If you plead not guilty, the court might strike you off anyway. So why not save us all a bit of money and find yourself another job?’

What would you do?