Don't rush to judgment - why Attorney-General had to water down fraud-busting plan

Joshua Rozenberg
24 Mar 2009

The Government has been forced to abandon one of the more extreme fraud-busting measures it had been hoping to announce. Baroness Scotland, the Attorney General, wants to introduce legislation that will allow judges to stop convicted fraudsters working as solicitors, estate agents or in financial services. Courts would also be able to wind up companies that had been used to commit fraud.

Professionals convicted of fraud are already at risk of being banned by their regulators. But the Government's view is that these procedures involve unnecessary delay and duplication. What's proposed is that the Crown Court could strike off an offender as soon as he is convicted.

Why stop there? Under plans put forward by Lady Scotland last year, courts would have been able to deprive professionals of their livelihoods as soon as an investigation was launched and even if the defendant was found not guilty.

This aspect was greeted with predictable outrage, not least by the judges. "The strength and breadth of the opposing views was striking," the Government admitted last week.

Many of those who responded to the Government's consultation paper "expressed fundamental concerns about the propriety of the Crown Court imposing sanctions on a person who had to be viewed as innocent, either because the charges against him had not yet been determined or because he had been found not guilty by the jury".

So the Government is no longer seeking to strike off defendants "as an interim measure pending determination of the criminal charge, and in the event of an acquittal as well as a conviction".

Lady Scotland insisted that this was not a defeat. "It was a genuine consultation," she told me, "and it seemed to us that the concerns people had were valid."

She also thought it would be easier to find a Parliamentary slot if the proposals were seen as uncontroversial.

But no legislation will be needed for the Attorney General's new guidelines on plea negotiations, which take effect early in May. These will allow defendants accused of serious or complex fraud to agree on circumstances in which they would be willing to plead guilty. Although the prosecutor and the defendant would then make a joint written submission to the court on the applicable sentencing range, the court would retain "an absolute discretion as to whether or not it sentences in accordance with the joint submission".

The aim is to dispose of the case before investigators start the laborious task of gathering sufficient evidence to prove charges in court. As a reward for saving prosecutors time and money, the defendant can expect the normal one-third discount for the earliest possible plea of guilty. Stephen Hockman QC, whose working group produced the draft framework, said he was pleased it was being implemented. "We evolved a model which we hope fits pragmatically within the features our own legal system and which we think will assist both sides in resolving some, but not all, substantial fraud cases."

When the plan was floated last year, some judges feared it would allow defendants to get off too lightly. If investigators had not yet discovered the full extent of an offender's wrongdoing, the defendant would have to be sentenced on basis of a low-level offence.

But Lady Scotland insisted that defendants would not be able to "slide out of culpability" in this way.

"It enables people right at the earliest point to wake up and smell the coffee," she said. "'Do you want to 'fess up now'- a prosecutor will ask - 'or do you really want me to go through dotting all the 'i's and crossing all the 't's? If you want me to, I can. But you may think this is an opportunity to sort your life out.'"