The Risk Of Abusing A Dominant Position

July 2009

Newsletter 8 View ‘The Risk Of Abusing A Dominant Position [PDF] ’


The culture of the investigation of serious criminal offences in England and Wales has been radically affected by three significant and welcome developments: the protocol entered into between the respective Attorneys- General of the US and of England and Wales regarding international co-operation in cases of mutual interest; the issue of the Attorney General’s guidelines on Plea bargaining, effective from 4 May 2009 and the developing policy of the Director of the Serious Fraud Office in exploring alternative methods to the disposal of criminal investigations by way of negotiated pleas or other resolutions by corporate defendants.

These developments are as important as they are welcome and each of these measures has the capacity to bring about the more effective, economic and balanced administration of justice.

However, each also bears its own inherent dangers and I am concerned that there is an increasing risk that without a proper framework of guidelines and a transparency of policy the process may introduce some unintended risks of abuse.

Until the case of Goodyear in 2005, English law had for thirty five years vigorously turned its back on any procedure whereby the sentencer became involved in plea negotiations. This was a legacy of Turner, a case in 1970, which put an end to the somewhat casual approaches defence counsel had customarily made to familiar judges to ask what the differential might be between the sentence for a plea of guilty and the sentence after a fight.

View ‘The Risk Of Abusing A Dominant Position [PDF] ’