Dougall, R v

A prosecutor and a defendant cannot agree the sentence to be imposed. A plea agreement may identify the agreed facts and relevant mitigation, but sentencing remains exclusively for the court.

Full assistance under a Serious Organised Crime and Police Act 2005 agreement normally attracts substantial mitigation. It gives no automatic legitimate expectation of the most favourable sentencing outcome. The weight of the reduction depends on the offender’s culpability, the circumstances and extent of the co-operation, and the whole case.

Where, after allowing for a guilty plea and full co-operation in a major fraud or corruption investigation, the appropriate sentence is 12 months’ imprisonment or less, the case for suspension is very powerful and will normally succeed. The decision nevertheless remains fact-specific.

The appellant pleaded guilty to conspiracy to corrupt arising from his involvement, over almost four years, in arrangements for corrupt payments to Greek public healthcare professionals to secure contracts for orthopaedic products. Bean J at Southwark Crown Court imposed 12 months’ immediate imprisonment.

Before sentence, the appellant had entered an assisting-offender agreement under section 73 of the Serious Organised Crime and Police Act 2005. He had made early admissions, provided substantial assistance to United Kingdom and United States investigations, and undertaken continuing co-operation. The sentencing judge certified a novel issue concerning the proper approach to an assisting defendant.

On appeal, the central issue was whether the public interest in encouraging such co-operation could justify suspending a sentence which, after all mitigation and assistance, was assessed at 12 months’ imprisonment.

1. Appeal allowed. The 12-month sentence was suspended. A supervision requirement was imposed, together with a requirement that the appellant attend the Serious Fraud Office when directed in order to fulfil his continuing agreement.

2. An agreement between prosecution and defence on sentence, or an agreed sentencing package presented for judicial approval, is contrary to principle. The prosecution may assist by identifying the agreed facts, aggravating and mitigating features, and assistance given. The sentencing decision remains exclusively for the sentencing court. The court approved the constitutional analysis in R v Innospec Limited and distinguished the separate procedure for a judicial indication under R v Goodyear [2005] 2 CAR 20.

3. Sections 71–75 of the Serious Organised Crime and Police Act 2005 formalise the established pragmatic practice of reducing sentence for an offender who assists the investigation or prosecution of others. The assistance earns an appropriate sentencing reward, not an agreed result. The first person to co-operate has no legitimate expectation of the most favourable outcome. Co-operation is substantial mitigation, but its proper effect depends on criminality, culpability, the circumstances in which it began, and its extent.

4. The court accepted that the usual reduction in sentence described in R v P; R v Blackburn [2007] EWCA Crim 2290 may provide too little practical incentive where the maximum sentence is comparatively low. Where the proper sentence, after a guilty plea and full co-operation in a major fraud or corruption investigation, is 12 months or less, the argument for suspension is very powerful and normally succeeds. Suspension is not automatic: it requires features of the offender’s involvement and mitigation which justify it.

5. Although the corruption was grave, the appellant had not initiated it, acted below more senior participants, gained no personal benefit, had sought to end the practice, and had provided exceptional early and continuing assistance. Applying the stated guidance, suspension was appropriate.

• Court of Appeal (Criminal Division): Allowed the appeal and suspended the 12-month sentence: [2010] EWCA Crim 1048.

• Crown Court at Southwark: Bean J imposed 12 months’ immediate imprisonment following the appellant’s guilty plea to conspiracy to corrupt.