Director of the SFO, Richard Alderman, recommends to a parliamentary committee a change in plea bargaining procedures
In the report of the International Development Committee published yesterday, evidence was given to the committee by a number of witnesses including government ministers, Transparency International and other NGOs and the Director of the Serious Fraud Office, Richard Alderman QC. The report is well worth a read although much of it centres on the BAE Systems corruption investigation and the delay in it paying the agreed sum of £30m to the people of Tanzania.
The Chair of the committee Malcolm Bruce, appeared to take a dim view of the conduct of BAE itself in its conduct and words AFTER the deal with the SFO had been struck in late 2010, in particular what he saw as the very late payment to the people of Tanzania of the agreed sum. At Question 92 of the transcript of evidence there are exchanges in oral evidence between Mr Alderman and the committee on the subject of BAE's perceived poor attitude.
Later on the committee asked Mr Alderman how he thought the possibility of plea bargaining, much criticised by the court and the court of appeal in the last year or so in the context of a number of corruption cases which came before the court, could be improved. Mr Alderman said:
"Q105 Hugh Bayley: You told us earlier this morning that you had great difficulty with the antiquated law under which this case had to be brought. You say in your written submission that you would not want to see the current Bribery Act amended. If you do not amend the Act what needs to be done to make the current arrangements for plea bargaining more transparent, and to enable payments of this kind, where a compensation payment is made to a third party, another country, more easily enforceable?
Richard Alderman: Perhaps I may take that question in two parts. First of all, the antiquated law was really about what was needed to be able to establish a charge of corruption. In those pre-Bribery Act days we needed to establish that what is called the directing mind of the corporation was involved in the illegal activity. Basically, that meant that we had to prove that the board of BAE, or people very close to it, were involved in the corrupt payments. I have made no secret of the fact that that test may well be suitable in terms of very small organisations but it is totally unsuitable for a modern globalised corporation. That is why the Bribery Act is such a big improvement. We no longer have to prove that the directing mind was involved in orchestrating and directing the corruption. We have to prove that there was a failure to prevent corruption and that there were not adequate procedures to prevent it. That is a very different test, and one that in my view is a very, very significant advance. Plea bargaining needs to retain and obtain public confidence if it is to be successful, and it must have judicial confidence. We are now dealing with a range of cases, particularly involving very large global corporations, where there are parallel investigations in other jurisdictions. The question arises: how are these cases to be brought to an end, given the particular issue of double jeopardy that I have mentioned? There are very difficult issues here. In my view, the corporations want certainty before the criminal justice system starts, and that is a legitimate request. On the other hand, we have to ensure that what we do has public and judicial support. My view is that that can be obtained only through having a judicial ruling before the agreement can be reached and charges are brought. If for one moment I take as an example the scenario of the BAE case, agreement was reached at about half-past 10 on a Thursday night, after lengthy negotiations. In the United States, the Department of Justice was going to go into court at about nine o’clock their time, two o’clock our time, to announce a settlement relating to eastern and central Europe and Saudi Arabia. That would have an impact on our case. My view has always been that if I had had the opportunity to take my agreement to a judge on the Friday morning it would have been a far better system.
Q106 Hugh Bayley: Forgive me; you have made this point twice. You are saying that the Bribery Act does not need to be changed but some bit of law does, I guess, in order to have the ability to go to a judge earlier in proceedings.
Richard Alderman: That is right.
Q107 Hugh Bayley: Could you possibly send us a note to explain which Act needs to be changed?
Richard Alderman: I can certainly do that. This is a criminal justice issue about the ability of a judge to be involved in a criminal case before any criminal charge is brought."
We at the Bribery Library agree with Mr Alderman's approach as set out in his evidence and consider that a change in the criminal justice system is over due. Change is needed in order to deal with the situations which arise in the very high value, international and often very complex cases such as corruption prosecutions which frequently take place in many countries in parallel. The UK court's reactions so far to the sort of bargains which the SFO has tried to reach with defendants have been reactionary and discouraging to the criminal justice process. These deals were plainly done in the best interests of encouraging defendants to come forward at an earlier stage, and to saving the enormous legal costs of a trial and yet the courts have been very prickly. Courts in the UK need to stop thinking parochially about their own coveted powers and start thinking globally about how to stamp out international corruption where frequently one case affects many countries. There needs to be much more pragmatic thinking in the UK, of the kind seen much more often in the US criminal justice system. If prosecutors are not allowed to reach agreements with defendants, then of course more of them will contest their charges, and this is something which the SFO and the court system simply cannot afford, with budgets being ever more tightly squeezed due to the current unparalled crisis in public expenditure funding. These are very different times, so we all need to develop different ways of thinking.
We will blog further on the debate about plea bargaining as it develops. If it is anything like the current debate on deferred prosecution agreements, it is likely to be some years before anything actually gets changed.