Court of Appeal rules on plea bargain sentencing

White-collar criminals sentenced to a year or less in jail should have their sentences suspended if they cooperate fully with related fraud investigations, the Court of Appeal ruled last week.

The lord chief justice Sir Igor Judge (pictured), presiding in R v Dougall, chastised the Serious Fraud Office (SFO) and counsel for the defence for suggesting a sentence to the court as part of a plea negotiation. SFO director Richard Alderman has previously expressed his enthusiasm for plea negotiations to speed up fraud investigations.

However, setting out guidance to sentencing courts, Judge said that a cooperative defendant in such a case should ‘normally’ have their sentence suspended if it is 12 months or less. He said relevant factors would be the level of criminality; mitigation; the initial plea; the level of cooperation with fraud or corruption authorities; and the burden of complying with a plea bargain.

The SFO said that this was the first overseas corruption case in which an individual had cooperated with the prosecutor in this way.

In the case, Robert Dougall pleaded guilty to conspiracy to corrupt, in that for four years he conspired with DePuy ­International, a Leeds-based orthopaedic device manufacturer, corruptly to pay Greek public healthcare professionals for supply contracts. In making £20m worth of sales to Greece over four years, DePuy International corruptly paid around £4.5m to health officials, doctors and surgeons in exchange for supply contracts, the court found. Judge said that the Greek market for orthopaedic products was endemically corrupt.

On appeal from Justice Bean in Southwark Crown Court, Alderman and the defence submitted to the court that Dougall’s 12-month sentence should be suspended because, among other things, of his cooperation with the SFO’s wider investigations into DePuy’s corrupt activities in Greece.

However, Judge said that a plea bargain between prosecution and defence involving an agreement on sentence was ‘contrary to principle’ and was not envisaged in guidelines on plea negotiations laid down by the attorney general in March 2009. ‘Responsibility for the sentencing decision in cases of fraud or corruption is vested exclusively in the sentencing court,’ he said.

Judge said that the guidelines should not create an assumption that fraud and corruption are more respectable than other forms of crime. He said the interpretation should not be that those who commit fraud or corruption should not be ordered to serve prison sentences ‘because such sentences should be reserved for those they would regard as common criminals. Once convicted, those are the ranks that they join’.

Judge concluded that Dougall’s 12-month sentence should be suspended.