could be argued that it did not matter how many charges there were for the purposes of sentencing. But such a decision has the effect of failing to bring to the court’s attention the full extent of the criminal conduct. 206.
As we have seen, the Court does have the ability to question the charges brought or an agreed plea, on a basis which falls below the demonstrated evidence of the transfer bundle.
207.
In Innospec, the company conducted a thorough review of its use of agents in numerous jurisdictions; however, evidence was only produced of the breach of sanctions in Iraq and the corruption in Indonesia. There was no criticism of the SFO in dividing the criminality between the US, which prosecuted both sanctions and corruptions offending as wire fraud and FCPA offences respectively, whereas the SFO prosecuted the Indonesian conduct. Nor was there criticism of the selection of charges: “A prosecutor must, in accordance with the relevant Attorney General’s guidelines… exercise his discretion as to the charges to be preferred. No question arises in this case as to the extent to which his decision may be challenged, as the charge of conspiracy preferred properly reflects the criminality.” (para 25 (i))
208.
In addition, Lord Justice Thomas noted there was no issue with the prosecutor’s acceptance of the basis for plea (para 25 (ii)). However, the important concept here is the Court’s vigilance and role in assessing whether the plea and its basis were “in the interests of justice”. The use of the word “challenged” seemed particularly strong and seemed to signal an enhanced judicial role in cases of “pre-charge” plea agreements, where the judicial role is more problematic, because the judge does not have the statements or other material that he can rely upon to assess whether the charges brought were in the public interest.
209.
This theme was returned to in the context of the BAE sentencing hearing. Mr Justice Bean “challenged” or criticised the charges brought. He could not understand why, based on the facts of the case, the SFO did not bring corruption charges. Far from the SFO alleging that there were, or may have been corrupt payments made by Mr Vithlani, it in fact asserted the opposite: “It is no part of the Crown’s case that any part of those payments were in fact improperly used in the negotiation process to favour BAEDS, nor is it any part of the Crown’s case that BAE was a party to an agreement to corrupt” (para 25)
210.
The SFO argues that a fuller picture of its reasoning on the charges brought would be gleaned from its submissions to Court, where the difficulties of proving beyond reasonable doubt that a company had committed a criminal offence were expanded upon, in particular, the difficulties posed by the “identification principle” on corporate liability. However, such reasoning is not on public record.
211.
The Judge asked Counsel for the SFO what should have been in the accounting records instead of the phrase “provision of technical services”. The response was “something along the lines of public relations and marketing services”, to which the Judge rejoined that if this were a true description of Vithlani’s services he personally doubted whether it would have been appropriate to prosecute at all.
212.
Whereas the judges have the means to criticise the charges on the indictment in criminal cases post transfer, afforded by CCPD IV.45, where the prosecution case can be seen on the papers, it does not work well in cases where pleas have been agreed pre charge. The Judge is essentially speculating about evidence that has not been disclosed to the court because it is not relevant to the charges that have been selected.
213.
The exercise of a prosecutor’s discretion, whether to prosecute and on what charges, is subject to judicial review, as illustrated by the BAE case. However, the effect of a successful application for judicial review is for the court to direct the prosecuting authority to reconsider its decision. Furthermore, the BAE litigation itself demonstrates how difficult it is for an interested party to challenge successfully a prosecutor’s discretion not to prosecute.
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