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Historically, ‘plea bargaining’ has been understood as an agreement between the prosecution and defence counsels which ultimately results in the defendant being in a position to receive a judgment which is less severe, if he or she changes his plea from ‘not guilty’ to ‘guilty’. There is also the possibility that the accused might accept a lesser charge in return for a guilty plea, as opposed to the original higher charge that the accused is initially charged with; this is more commonly known as ‘charge bargaining. Through these particular settlements, both parties come to achieve a valuable compromise, which is a great advantage to all concerned parties. Coming to an agreement prevents opposing counsels having to deal with extra work and particularly for the prosecution who have gained a guilty plea in return for a more lenient sentence for the defence council. In addition, this mutual compromise is very significant as it saves a lot of money for both the defendant and the State. According to Home Office statistics, the cost for a contested trial in the Crown Court was an estimated ? 2,088, compared to a significantly inexpensive cost of about ? 1,400 for cases with a guilty plea . It is no surprise then that the lower costs also attract shorter times; 9. 5 hours and 80 minutes respectively clearly help to speed up the overcrowded court system of England and Wales. Plea bargaining is not a new concept to the law and has been present in legal systems across the world for several centuries, however, there has not been any substantial research upon this topic until recently.
This research has suggested that some form of plea-bargaining was present as early as the 1880s, albeit in the USA. Similarly, here in England & Wales ‘plea-bargaining’ has seen incredible growth over the last hundred years, leading to the decline in employing a jury to settle a trial. Instead, as seen in America, ‘plea-bargaining’ has grown and is now the leading method of trial disposition in the English legal system.
This increase in the secondary method of case disposition was predominantly due to the courts of England and Wales going through a transformation, which introduced the whole system to adversarial features and techniques. With increased pressure on juries having to comprehend new and vast aspects of the law as cases became very technical and longer to settle, prosecution and defence lawyers alike sought to settle trials more efficiently. This efficient method became to be known as ‘plea-bargaining. ‘ Nonetheless, it was thought that ‘plea-bargaining’ was ot present in the English system but the practise of ‘judicial indication on sentence’ existed. It was not until the leading case of R v Turner, (1970) when the issue of sentence indication was addressed. As a result of this case the original guidelines on sentence indication and reduction in exchange for a plea were formed. In my view, the need for a formalised system governing ‘plea-bargaining’ has been inevitable ever since Lord Parker CJ laid down the conditions, which could potentially be the foundations for the legislation, which would govern ‘plea-bargaining. In the case of Turner, Lord Parker CJ laid down four rules; first, he stated that it was the duty of counsel to give the best advice they can, in addition to the guidance that genuine remorse is a mitigating factor which may allow a court to pass a lesser sentence. Secondly, the decision to plead must only be the choice of the accused, without undue influence, ensuring freedom of choice. This is then twinned with the need for openness of contact between opposing counsels and the judge, making certain that both prosecution and defence counsel are present in front of the judge, in order to ensure impartiality.
As a final point, Lord Parker CJ stated that any judge should never indicate or specify the sentence he or she is proposing to enforce. This is a very important point as it forms the background to the arguments against ‘plea-bargaining,’ which will be discussed later. These guidelines were subsequently reinforced only years later in the Court of Appeal’s Practise Direction (Turner Rules), overturning the case of Cain (1976) which had incorrectly interpreted the guidelines set out by Lord Parker CJ.
In Cain there was importance placed upon the fact that defendants who did not know that guilty pleas attracted lesser sentences, should be notified. It was seen that this particular interpretation of Turner was wrong and subsequently overruled, leaving Turner as the leading authority, later confirmed in Atkinson. Many years later and after many extensive studies into the nature of guilty pleas, ‘plea-bargaining,’ has become the primary method of case disposition in the English legal system.
According to a study by Ashworth, over 70% of defendants pleaded guilty in a Crown court and approximately 90% plead guilty in magistrates’ court, taking into consideration, a variety of offences and also when a guilty plea is entered at the last moment, resulting in a trial to be ‘cracked. ‘ This does not take into account any difference between geographical studies. When this aspect is considered, an unexplained imbalance is viewed, with the North Eastern Circuit reporting a guilty plea rate of just over 75% in contrast to just over 40% in the London Courts.
From this, it can be inferred that there is an element of prejudice across different regions of England, which suggests that any system of ‘plea-bargaining’ will have to address these issues in order to ensure a fair and lucid system is developed. Along with these high amounts of guilty pleas, another issue arises through the amount of defendants who later declare themselves innocent. In a study by Zander and Henderson , they discovered that 11% of defendants who pleaded guilty claimed they were innocent.
In a study by McConville and Baldwin they found that almost 60% who had pleaded guilty had made a claim in their interviews with themselves, that they were innocent on all or some of the charges they faced. This shows that not all decisions taken by all defendants are free and voluntary. Considering this, there was further evidence suggesting that the Turner rules were not being applied correctly; as seen by McConville and Baldwin in the same study where they found that most defendants saw their barristers advice as nothing short of coercive and were given no real alternative but to plead guilty.
Nonetheless, ‘plea-bargaining,’ is already partly included in the English legal system, introduced under the SOCAP Act 2005 , where sentence reduction is considered for defendants who have assisted during proceedings. It must be noted that this particular piece of legislation is directed towards prosecutors, in order to help them in their investigation process; the explanatory note dedicated to Chapter 6 of the act clearly states how the common law principles of ‘Queen’s evidence’ have now been given statutory footing in order to reduce the increasing levels of organised crime.
Consequently, this then led the Government to consider a further introduction of an officially recognised system of ‘plea-bargaining,’ as part of the overhaul of the way large fraud cases are handled. In the final report released entitled ‘The Fraud Review’ the Attorney General of the time Lord Goldsmith, proposed introducing a system that primarily concentrated on high-profile fraud, which at the time was costing the British economy an estimated ? 14 billion a year.
After considering responses from the people within police forces, the public sector, representative associations and government departments, the need for a system of ‘plea-bargaining’ was seen to be more evolutionary than revolutionary . Furthermore, the calls for a formal introduction of such a system were enhanced through the case of R v Goodyear (2005) which set down more important guidelines that govern the law around sentencing implications for defendants who present a guilty plea.
In the case of Goodyear, it was found along with the fact that any guilty plea entered by a defendant must embody freedom of choice, the judge must now also look to ‘accede to the defendant’s wish to be fully informed before making his own decision on how to plead. ‘ In the Court of Appeal, Lord Woolf observed that there was a substantial difference between ‘an indication given to a defendant who deliberately sought it and an unsolicited indication directed at him from the judge and conveyed to counsel,’ consequently coming into line with the recommendation of the Runciman Report.
The Royal Commission on Criminal Justice recommended back in 1993 that a sliding scale of sentence discount be introduced for defendants; thus, the earlier they plead the bigger discount they get. This was backed up by 90% percent of barristers and judges out of 900 cases, who were strongly in favour of a ‘plea-bargain’ system with the aforementioned sentence discounts proposal. Originally, the Government ignored this recommendation but over time has changed its view, especially after it was proposed a second time in the Auld Report.
The introduction of a graduated scale is now evident in the Sentencing Guidelines, which have now been issued. Formerly, the Government had only introduced statutory law, which ordered the courts to consider the stage at which a guilty plea was entered but at the same time, the courts were not ordered to explicitly give any discount. Nonetheless, ever since the revision of the Turner Rules, through the Goodyear Guidelines, courts are now instructed to indicate sentence in an open court, provided it is requested.
The need for a system which governs ‘plea-bargaining’ is ever more present given the situation we face today in our society with the threat of terrorism and high-profile fraud. According to the ‘Fraud Review,’ over 95% of fraud cases in America are completed through a form of ‘plea-bargain’ whether it is a lesser sentence or a lesser charge, compared to a relatively low rate in Britain where complex fraud trials often used to collapse after a prolonged period of time because the jury would not understand anything.
With the proposals set out in the ‘Fraud Review,’ the UK can now seek to ‘close the substantial gap that exists in the prosecution of serious fraud in the UK. ‘ It is argued that with the appropriate checks and balances the UK can insure that a formal system of ‘plea-bargaining’ is introduced and implemented. Arguably, there are a lot of problems to consider as previous studies have shown, however, there is also evidence that shows such a system does work.
In case of Conrad Black, due to a ‘plea-bargain’ reached by his former lieutenant David Radler, Conrad has received a six-and-a-half year sentence, whilst his aide has escaped a sixty-year sentence, now only facing just over two months in jail with a hefty fine. In opposition to the introduction of a governed system of ‘plea-bargaining,’ Sanders and Young argue that it is ‘an idealistic notion’ for the law to encourage a guilty plea through a sentence discount whilst simultaneously improving the effectiveness of the system in convicting the guilty, whilst assuring that innocent are not convicted.
In contrast, there is not enough research to suggest that a system of ‘plea-bargaining,’ will increase the amount of innocent people going to jail. It is important to consider that one particular reason why defendants plead guilty is because they have actually committed a crime, as shown by Bottoms and McClean who found that out of 200 defendants interviewed, two-thirds stated they pleaded guilty because they had actually committed the offence.
In conclusion, whilst sidelining the issue of morality behind securing a guilty plea in exchange for a lesser sentence, it can be seen that the development of the common law in conjunction with recent legislation and proposals have lead to some form of a ‘plea-bargaining’ structure to be considered. This is without a doubt welcomed throughout the legal profession for a number of reasons including the convenience, however, this is not at the expense of any victim, neither is it detrimental to basic human rights of an individual.
As the Attorney General acknowledges in the ‘Fraud Review,’ ‘there needs to be a fundamental debate concerning the place of plea bargaining in the criminal justice system as a whole,’ does not rule out needs of a defendant and the requirements of a fair and transparent judicial system. It is important to note that as part of the detailed recommendations made by the Attorney General, prosecutors would provide the accused with a case statement dealing with the nature of the case, allowing the defence counsel to reply whilst the prosecution operated without prejudice.
In my view, this rebuts the notion proposed by Sanders and Young, where they argue, any system of ‘plea-bargaining’ opposes due process models of criminal justice, whilst swaying away from the necessity of the ‘principle where the burden of proof rests upon the prosecution. ‘ If there was to be any system introduced, it is without question that impartiality and transparency, as set out in the Turner and Goodyear rules, would be at the forefront.
After all, what distinguishes the English legal system from other western legal systems is its fairness and regard for all parties, as opposed to the American system, where ‘plea-bargaining’ is initiated by the prosecution, who would be proposing the sentences. Thus, it must be appreciated that there has never been a more timely need for this system of ‘plea-bargaining’ to be addressed, whilst maintaining, that there are many issues to be discussed and assessed with a fine-tooth comb before an actual system is proposed.
In my view, the primary issues that need to be attended to are similar to what Henham proposes; transparency in any system of ‘plea-bargaining’ needs to be the at the forefront of any proposed legislation, where any sentence reduction in exchange for a plea is explained coherently along with the precise effect that the sentence is meant to have. Most importantly, it is argued that any system of ‘plea-bargaining’ must envelop and show a committal to Article 6 (2) of the European Convention on Human Rights, which coherently states that anyone ‘charged with a criminal offence is presumed innocent until proven guilty according to law. Under this presumption, any system of ‘plea-bargaining,’ is in clear contravention and would need to be either completely eradicated, which seems unlikely given the advantages it provides, or a complete overhaul of the criminal justice system is required. ? Bibliography Books: – ???Sanders & Young, Criminal Justice (3rd ed. ) ???Elizabeth A. Martin, Dictionary of Law Oxford University Press; (6Rev ed. 2003) ???A. Ashworth, The Criminal Process: An Evaluative Study (1st ed. 1994) ???Ashworth A, The Criminal Process (2nd ed. 998) pg 269 Websites: – ???Office of Public Sector Information – www. uk-legislation. hmso. gov. uk/ ???Sentencing Guidelines Council – www. sentencing-guidelines. gov. uk ???Attorney General’s Office for England and Wales – www. attorneygeneral. gov. uk ???Serious Fraud Office ??? Guilty Pleas & Plea Bargaining – http://sfo. gov. uk/operationalhandbook ???BBC News ??? www. bbc. co. uk ???Times Online News ??? www. timesonline. co. uk ???Oxforfd Journals – http://bjc. oxfordjournals. org/ ???My Athens ??? www. athensams. net