R v Dougall
[2010] EWCA Crim 1048
Independent editorial summary — not the official judgment. Read the full judgment via the source link.
Ratio Decidendi
Plea agreements in which the prosecution and defence agree what the sentence should be are contrary to principle: responsibility for the sentencing decision in fraud and corruption cases rests exclusively with the court, and there is no legitimate expectation that the first person to cooperate with an investigating authority will receive the most favourable sentencing outcome. However, where the appropriate sentence for a defendant who has pleaded guilty and given full cooperation under a SOCPA 2005 s.73 agreement in a major fraud or corruption investigation would be 12 months' imprisonment or less, the argument for suspending the sentence is very powerful and that result will normally follow.
Facts
Robert Dougall, a marketing director at DePuy International Ltd with operational responsibility for its Greek business, pleaded guilty to conspiracy to corrupt: between February 2002 and January 2006 around £4.5 million in corrupt payments was made to surgeons, doctors and health officials in the Greek public healthcare system to secure orthopaedic supply contracts. He received no personal benefit, was the only individual worldwide to accept criminal responsibility, and entered a cooperating-defendant agreement with the SFO under s.73 of the Serious Organised Crime and Police Act 2005, assisting both UK and US investigations. Bean J sentenced him to 12 months' immediate imprisonment, and he appealed on the basis that the sentence should have been suspended.
Judgment Summary
The Court of Appeal, in a judgment given by the Lord Chief Justice, Lord Judge, criticised the plea agreement for going beyond recording mitigation into advocacy of a suspended sentence, reaffirming that sentence agreements between prosecution and defence are not countenanced and that no cooperating defendant has a legitimate expectation of the most favourable outcome. The court nevertheless gave guidance that where the appropriate sentence for a defendant giving full SOCPA cooperation in a major fraud or corruption case would be 12 months' imprisonment or less, suspension will normally follow. Applying that guidance, the court concluded this was an appropriate case for the 12-month sentence to be suspended, with a supervision requirement and continued attendance at the SFO under the SOCPA agreement.
Key Quotes
"In this jurisdiction a plea agreement or bargain between the prosecution and the defence in which they agree what the sentence should be, or present what is in effect an agreed package for the court’s acquiescence is contrary to principle. That applies to cases of this kind, as it does to others."
— Lord Judge CJ, giving the judgment of the court, at [19](verbatim, verified against the judgment)
"What we indicate is that where the appropriate sentence for a defendant whose level of criminality, and features of mitigation, combined with a guilty plea, and full co-operation with the authorities investigating a major crime involving fraud or corruption, with all the consequent burdens of complying with his part of the SOCPA agreement, would be 12 months’ imprisonment or less, the argument that the sentence should be suspended is very powerful. This result will normally follow."
— Lord Judge CJ, giving the judgment of the court, at [36](verbatim, verified against the judgment)
Subsequent Treatment
Guideline authority on sentencing defendants who cooperate under SOCPA 2005 s.73 agreements in fraud and corruption cases, and on the impermissibility of prosecution–defence sentence agreements (considered alongside R v Innospec Ltd).
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