What Impact will Formalising Plea Bargaining have on Justice and Equality in the English Legal System?

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What Impact will Formalising Plea Bargaining have on Justice and Equality in the English Legal System?

Before discussing plea bargaining it is perhaps paramount to define what is meant by the expression.  Plea bargaining refers to ‘the exchange of a guilty plea for a reduced charge or some hope of a reduced sentence.’ In other words it is an agreement between the prosecution and the defence by which the accused changes his plea from not guilty to guilty in return for an offer by the prosecution or when the judge has informally let it be known that he will minimize the sentence if the accused pleads guilty.  This essay will examine the history of plea bargaining in the English legal system, the current situation, compare our system to that in the United States of America and consider the impact of a formal system of plea bargaining on our legal system, justice and equality.

Before the twentieth century, the vast majority of criminal cases in Anglo-American jurisdictions were disposed of by jury rather than by guilty plea.  Guilty pleas were considered ill-advised, and empirical studies focusing on particular jurisdictions indicate that guilty pleas and plea bargaining in both the United States and the United Kingdom were relatively rare until the latter half of the nineteenth century.  During the course of the eighteenth century, English criminal procedure underwent a transformation from a predominately non-adversarial system to an identifiably adversarial one. The introduction of these adversarial features, while providing necessary safeguards for defendants’ rights, at the same time greatly lengthened and complicated the previous summary jury proceedings. With more issues of law raised, more expert witnesses testifying, and more cross-examination, jury trials became time-consuming, complex events dominated by professional advocates.  As trials became more complex, the lawyers who were beginning to dominate them developed a more practical alternative for case disposition and that alternative was plea bargaining.   

Although the adversary system originated in England, English procedures are now considerably less adversarial than American procedures, that is, English procedures are simpler, straightforward and more efficient.  English procedures provide more information to the parties and to the court.  Unlike most American jurisdictions, English law requires defendants to disclose before trial the nature of their defences and the matters on which the defence intends to join issue with the prosecution.  As a result of English trial proceedings being more efficient than American procedures, there is less plea bargaining in England than in the United States.  The system of plea bargaining is known to be commonly used in the United States but it has always been thought to be used only very cautiously in England and under strict and carefully constrained conditions.

Less than thirty years ago it was widely believed that plea bargaining was not practiced at all in England.  Since then, plea bargaining, and in particular, implicit plea bargaining has surfaced; English defendants are now understood to routinely receive a sentence reduction upon a plea of guilty.  British academics started writing about plea bargaining and negotiation in the 1970s, some of the earlier works coming from McCabe and Purves.  Research carried out by Baldwin and McConville was the first practical exploration of the concerns and problems related to plea bargaining.  The research revealed that plea bargaining does take place in English courts and has been hidden from researchers.  The research also discovered that judges were prepared to contravene the rules set out in R v Turner, by offering a specific sentence in exchange for a guilty plea.

Judges have to be very cautious in playing any role in plea arrangements; although as a result of the Powers of Criminal Courts (Sentencing) Act 2000 must now indicate in court if a reduction in sentence has been granted to a defendant.  The Court of Appeal considered judicial intervention in plea arrangements in the greatly controversial case of R v Turner.   In this case the defendant had changed his plea to guilty on reliance that counsel was conveying the stance of the judge when he said that a guilty plea was likely to result in a non-custodial sentence.  The defendant later appealed on the ground that he did not have an open choice in withdrawing his initial plea.  The appeal was allowed on the basis that the accused may have understood that the opinions put across were those of the trial judge and therefore may have been deprived of his self-determination of plea.  

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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 ...

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