Lord Chief Justice Parker made several observations in the case of R v Turner. Firstly, that counsel must give the best advice he can, in tough terms if need be, together with the guidance that a guilty plea is a mitigating factor which may allow a court to pass a lesser sentence. Counsel should highlight that the accused must not plead guilty unless he or she has committed the offence. Secondly, the accused must have freedom of choice of plea. Thirdly, there must be openness of contact between counsel and judge in order that issues that cannot be discussed in open court may be communicated. Counsel for the defence and prosecution must both be in attendance. Finally, it was observed that a judge should never specify the sentence he or she is intending to enforce.
In R v Dossetter, the Court of Appeal cited the passage and observations made by Lord Chief Justice Parker and restated that “plea bargaining, in the sense of seeking to extract from a judge an indication of the sentence which he will give if a particular defendant pleads guilty, forms no part of English criminal jurisprudence”.
Today in American courts unlike the English legal system, a system of open-court bargaining replaces trials in most criminal cases. American criminal proceedings have gradually increased in complexity, length and lawyer domination. Criminal proceedings in the American adversarial system are structured in the form of a contest. This adversarial model gives to the parties the responsibility for investigating the facts, researching the law, and presenting the case in the manner most favourable to their own position. In contemporary trials, these tasks are carried out by lawyers. Thus, lawyers have emerged from playing no role in criminal cases to now dominating adversarial proceedings. The law of evidence has also evolved into a complex, technical network. The typical American criminal trial thus features numerous evidentiary objections, complex jury instructions and a host of tactical manoeuvres made by counsel keen to advance their clients’ interests. The contemporary American trial provides a defendant with every method to strongly contest the charges against him, but in doing so has become very expensive and time consuming. As a result approximately ninety percent of all American criminal cases are disposed of by a guilty plea secured through plea bargaining.
In America the high rate of guilty pleas is necessary for the system to operate due to the complex and time consuming cases that are brought before the courts. The reduction or elimination of plea bargaining in American criminal cases would require the expenditure of additional resources and a more simplified procedure.
After discussing the history of plea bargaining, the current system in English courts and how the system operates in other jurisdictions, suggestions for reform and the response to proposals now needs to be examined. The criminal process in the English legal system has been repeatedly criticised. A topic that has been regularly discussed is plea bargaining. The report of the Royal Commission on Criminal Justice examined plea bargaining amongst various aspects of the criminal process. The Royal Commission on Criminal Justice (Runciman Commission) was established in 1991 as a direct response to the release by the Court of Appeal of the Guildford Four and the Birmingham Six from long terms of false imprisonment, following the overturning of their convictions for terrorist bombings in the 1970s.
The Royal Commission filed a report and found that a large number of defendants change their plea to guilty at a late stage in criminal proceedings, thus causing trials to crack. The Royal Commission took the approach that defendants do not declare a guilty plea initially in order to mess with the system. The Commission recommended a number of procedural changes to increase the incentives to defendants to plead guilty at an early stage. The key proposals were that firstly, there should be clearer articulation of the sentencing principle that the earlier in the proceedings a guilty plea was entered, the greater the sentencing discount should be. Secondly, defendants should have the right to initiate a sentence campaign whereby defence counsel would be able to ask the trial judge what the maximum sentence would be if a plea of guilty was entered at that stage. Lastly, negotiations between defence and prosecution concerning a reduction in the level of charge in return for a plea of guilty should be encouraged to take place as early as possible. These recommendations were widely reported in the press as an indication of the introduction of an American style system of plea bargaining. However, it has been shown that plea bargaining is already an integral part of the criminal justice system.
The Government did not follow the recommendations made by the Royal Commission but did introduce section 48 of the Criminal Justice and Public Order Act 1994, now section 152 of the consolidating Powers of Criminal Courts (Sentencing) Act 2000, as discussed previously. As a result, Lord Justice Auld was asked by the Lord Chancellor to review the criminal courts in England and Wales. One of the areas he was required to reassess was whether a formal discounting system of early pleas should be introduced and whether or not plea bargaining should be permitted. Lord Justice Auld believed that advance indication of sentence would benefit defendants and witnesses alike. He proposed a system of graduated discounts where the defendant would be given a greater reduction for an earlier plea. Safeguards would be introduced to ensure that a defendant was not put under any pressure and did not plead guilty without legal advice.
The idea of lower sentences for guilty pleas has been criticised by Professor Andrew Ashworth of Oxford University. He and other academics say it gives defendants a benefit they do not deserve, because a plea of guilty does not reduce the offender’s culpability or need for imprisonment. It must also be contrary to the presumption of innocence to impose a heavier penalty on a defendant who requires the prosecution to establish his guilt, they say. Worst of all, perhaps, the incentive may put pressure on a defendant who expects he will be convicted anyway to admit a crime he has not committed. No discount is given for a plea of guilty in Scotland, where it would be regarded as an improper inducement.
If a formalised system of plea bargaining was introduced into the English legal system it would ultimately lead to overcharging by the police and prosecution. It is all too easy for police and prosecution to overload the defendants’ charge sheet to pressurise defendants to plead guilty to some charges in return for the excess charges to be dropped. Overcharging and inappropriate charging imposes unfair pressure on defendants and may cruelly raise the expectations of victims. It results in extra costs in preparing the prosecution and defence and would undermine public confidence in the criminal justice system. Penalties should be based on a determination that the defendant has committed the criminal act alleged based on evidence assembled by the prosecution. Punishment should not depend on convenient and disordered compromises secured between prosecution and defence lawyers. Overcharging tends to lead to late decisions to plead guilty to lesser offences and cracked trials. One academic agrees with this argument and writes ‘to introduce open ‘plea bargaining’…and extend the police’s opportunities to obtain and use confessions and other physical and psychological pressures against suspects – will be to normalize miscarriages of justice.’
A formal system of plea bargaining will also have an impact on citizens’ rights and privileges as it contravenes the European Convention on Human Rights. Firstly, it penalises those who exercise their right to trial (Article 6) and secondly it indirectly discriminates against Afro-Caribbean and Asian defendants which breaches Article 14. Under the European Convention on Human Rights these Articles provide for the presumption of innocence, the privilege against self-incrimination, the right to be treated fairly without discrimination and the right to a fair and public hearing.
It could be argued that plea bargaining is racially discordant and divisive. This is the argument that the academic Penny Derbyshire proposes. In the United States, research revealed that bargains were far superior for white defendants than they were for black defendants. By introducing a formal system it will not solve equal bargains as ethnic minority defendants are more likely to exercise their right to trial. It is well known that in criminal proceedings if a trial takes place, the defendant is likely to be sentenced to a custodial sentence and if found guilty is likely to have a longer sentence.
The last objection to a formalised plea bargaining system in terms of justice and equality is that we should not reward a defendant if they are actually guilty. This system of rewarding the guilty will reduce faith in justice by the victims. A guilty plea does not always equal remorse and a discount in sentence benefits the guilty rather than punish which is the aim of criminal law in the English legal system. A victim of crime has faith in the English system of justice in that a system of fairness and reasonableness will ensure that the defendant is punished for the wrong they have committed. Sentencing should reflect the crime that they have committed in order for the victim to accept that they have had a fair dealing. Not only will the victim be a target of injustice, society will as a whole. Plea bargaining will have an impact on the justification of sentencing. Deterrence is the principle objective of sentencing defendants and with a formalised procedure of discounts this rationalisation will be lost. Higher sentencing discourages defendants from re-offending and if reduced, will not deter other members of society from committing criminal offences.
Although many academics argue that plea bargaining will regulate injustice there are some procedural reasons for the proposals to formalise the system. An article written by Young and Sanders deals with some of the arguments in favour of a formalised plea bargaining system. They put forward the suggestion that the Royal Commission’s proposals on plea bargaining will have the asset of openly recognising the practice in the legal system. This open approach would allow for easier regulation and the communication of more accurate information to the defendant. On academic who believes that plea bargains should be made public is James Morton. In his article he states that ‘what is desirable, as with any form of justice, is that it should be clear and in the open.’ This argument puts forward the suggestion that a formal system should be introduced to ensure that all discussions take place in an open court and not behind closed doors. The current situation in the English legal system is that plea bargaining is conducted in secrecy. If plea bargaining is to continue in the system then it needs to be controlled and carried out in an open court to avoid miscarriages of justice and inconsistent sentencing.
In the American courts, plea bargaining is necessary in order for their legal system to function. The case load is vast and the trials are complex and lengthy. If we were to introduce a formalised system of plea bargaining into the English legal system then the current system would be even more cost-effective and efficient. Plea bargaining would ultimately attract guilty pleas and an initial guilty plea would avoid cracked trials, would allow for faster sentencing and would reduce the number of cases heard in the Crown Court. These benefits would save costs and court time. However, shorter custodial sentences can result in prison overcrowding and prevents prisons from undertaking positive remedial work with more serious offenders.
One academic condenses the advantages of a formalised plea bargaining system in response to the Royal Commissions recommendations. Michael Zander believes that ‘everyone benefits, the defendant benefits in getting a reduced sentence, the prosecution benefits in getting a conviction and a reasonable sentence, the system benefits in securing a guilty plea without the cost of trial, and witnesses are spared having to give evidence.’ However, he fails to mention the victim who is likely to lose all faith in justice as a result of the proposed system.
To conclude, a formal system of plea bargaining would reverse the adversarial model to one in which the accused is required to choose between a series of options which are more or less burdensome. Every incentive exists for the police and prosecution to rely upon a system of open discounts and penalties to pursue confessions instead of a thorough investigation. Thus, the need for a public hearing where the state must generate facts to give good reason for punishing the accused is substituted by admissions of guilt from the accused which, because they will be claimed to be open, taken without pressure and voluntary, presents the basis for the entry of a conviction. To model the system of criminal justice of England and Wales upon the non-adversarial principles fixed in the American practice would, therefore, eradicate the fundamental rights of the accused and accepted concepts of the legitimacy of public prosecutions.
It is clear that the present system of criminal justice is, indeed, in urgent need of reform. This should not be in the direction of a relaxation of the system in favour of obtaining more guilty verdicts and convicting more people. Rather, the present system needs to be reformed in the direction of stating clear aims and safeguarding against convicting of the innocent. Plea bargaining can result in miscarriages of justice. Plea bargaining induces innocent people to plead guilty to criminal offences that they have not committed. Convicting more of those brought to trial will undoubtedly mean making more mistakes and convicting even more innocent victims. Society likes to believe that miscarriages of justice are relatively rare but in fact they are common. If plea bargaining was formalised in the English legal system it would mean that more innocent victims are convicted and faith in the system would be lost.
Darbyshire, P. ‘The Mischief of Plea Bargaining and Sentencing Rewards’ (2000) Criminal Law Review Pages 895 – 910
Baldwin, J. & McConville, M. (1977) Negotiated Justice, Martin Robertson & Company Ltd pp.1-14
Zander, M. ‘Plea Bargaining Goes Back a Hundred Years’ (1998) New Law Journal Page 323
McCabe, S. & Purves, R. (1972) By-passing the Jury, Blackwell
Baldwin, J. & McConville, M. (1977) Negotiated Justice, Martin Robertson & Company
The Times, 5 February 1999
The Times, 5 February 1999, at Judgement 1 (Rose LJ)
Baldwin, J. & McConville, M. (1977) Negotiated Justice, Martin Robertson & Company Ltd p.19
Report of the Royal Commission on Criminal Justice (‘RCCJ’) (1993, chair Lord Runciman)
A Review of the Criminal Courts of England and Wales by the Right Honourable Lord Justice Auld, September 2001
Ashworth A, Genders E, Mansfield G, Peay J & Player E, Sentencing in the Crown Court (Occasional Paper no 10) (Oxford Centre for Criminological Research, 1984)
Ashworth, A. ‘Plea, Venue and Discontinuance’ [1993] Criminal Law Review p 830
Bridges, L. ‘Normalizing Injustice: The Royal Commission on Criminal Justice’ (1994) Journal of Law and Society p.20-37 at 35
Derbyshire, P. ‘The Mischief of Plea Bargaining’ [2000] Criminal Law Review p. 895-910 at 901
Conclusion made after reading research compiled in: Gordon, P. & Shallice, A. Black People, White Justice? Race and the Criminal Justice System (1992) The Runneymede Trust, Page 17
Young, R. & Sanders, A ‘Plea Bargaining and the next Criminal Justice Bill’ (1994) New Law Journal vol.144 p.1200
Morton, J. ‘Why not allow Plea Bargains but make them Public?’ (2000) New Law Journal vol.150 p.928
Zander, M. ‘Making a Pact with the Devil’ The Guardian, October 30 2000