The researchers also highlighted the influence of legal advice when deciding how to plea. Of all the defendants in the study who changed their plea to guilty, just one said it was entirely his own decision, the remainder said they had acted on the legal advice given to them. (Sanders and Young, 2000). The role of the defence lawyers is very important, as defendants are extremely reliant on them. (Ashworth, 1994). In Zander and Henderson’s (1993) survey it was revealed that many defendants are not given accurate legal advice until the day of their trail. They discovered that 70% of defendants who changed their plea to guilty only met their counsel on the day that the trial took place. 94% of defendants who obtained legal advice stated that they changed their minds about their plea because of the advice from their solicitor or barrister. (Belloni and Hodgson, 2000).
We must realise that one reason why defendants plead guilty in court is because they have committed the offence and are actually guilty. In a study by Bottoms and McClean over 200 defendants who had pleaded guilty at a magistrates’ court or at a Crown Court were interviewed. About two-thirds stated that they pleaded guilty because they had committed the offence. In fact 70% of the people interviewed had confessed their guilt to the police from the start. (Ashworth, 1994).
A Crown Court survey in the early 1990’s found that 65% of cases had guilty pleas, from these only 39% were initially listed as a guilty plea and the final 26% were originally listed as not guilty and were ‘cracked trials’. (Ashworth, 1994). Ashworth (1994 :259) describes a cracked trial as ‘one that is listed as a not guilty plea, with court time set aside for a contested trial, and in which the defendant changes to a guilty plea after the case has been listed, i.e. at a fairly late stage.’ Cracked trials are a problem for the criminal justice system as they waste limited resources, particularly judicial time, court time and public money. They are also a problem for witnesses and victims as they may cause anxiety and inconvenience. The use of plea bargaining and charge bargaining in Britain’s legal system is used to influence defendants to plead guilty, and to try and reduce the number of cracked trials. (Ashworth, 1994).
One reason why a defendant might plead guilty is because plea bargaining has taken place between their counsel and the judge, and they have been offered a sentence discount. This is where the defendant admits to the offence and therefore is given a reduction in their sentence. (Belloni & Hodgson, 2000). The discount is usually about one third of what the defendant would have got if they were convicted on a not guilty plea. (Ashworth, 1994). Ashworth (1994: 266) summarises plea bargaining as ‘trading a chance of acquittal for a lower sentence than would have been received in the event of a conviction.’
However research carried out in the early 1980s interviewed 129 magistrates and discovered that two-thirds of them considered a guilty plea to have little or no impact when sentencing. (Sanders and Young, 2000). Therefore The Criminal Justice and Public Order Act encouraged judges to take into consideration guilty pleas, although this had previously been occurring. (Cited in Sanders, 1997). In 1993 guidelines were given to magistrates by the Runciman Commission recommending the use of sentence discounts. (Sanders and Young, 2000).
In order to reduce the number of ‘cracked trials’ the Runciman Commission (1993) suggested a graduated approach for discounts on sentences, which are related to the point in the criminal proceedings where the guilty plea is put forward. (Belloni & Hodgson, 2000). In short ‘the earlier the plea the higher the discount.’ (Belloni & Hodgson, 2000: 141). It was also recommended that the defence solicitor should, at any point, be able to enquire about the maximum sentence the defendant could receive if they were to change their plea to guilty. (Belloni & Hodgson, 2000).
From the due process perspective, sentence discounts are an unacceptable feature in the criminal justice system as they persuade defendants to plead guilty and therefore forsake their right to a fair trial. As a result the prosecution is no longer required to prove their guilt. (Sanders and Young, 2000). According to the crime control model there is only one problem with the use of sentence discounts, that being its inefficiency. For example in 1999 approximately 16,000 people did not plead guilty until the day of their Crown Court trial. (Sanders and Young, 2000).
Charge bargaining is also used to try to persuade a defendant to plead guilty. This usually involves obtaining a guilty plea from a defendant in return for dropping the charge for a less serious one. However it also refers to when a defendant is accused of several charges and agrees to plead guilty to at least one in exchange for dropping others. (Sanders and Young, 2000).
Research evidence such as McCabe and Purves’s (1972) study and Hedderman and Moxan’s (1992) study shows that charge bargaining is common in the UK. In McCabe and Purves’s (1972) study 77 out of 112 defendants changed their plea to guilty at a late stage but only pleaded guilty to a less serious charge. Hedderman and Moxan (1992) discovered that 51% of defendants in their study changed their plea to guilty in presumption that a number of charges would be reduced or dropped. (Ashworth, 1994).
Charge bargaining is appealing to defendants as not only will they receive a lighter sentence for pleading guilty to a less serious offence, but they will also be given a sentence discount for pleading guilty. In some cases this could mean the difference between a custodial sentence and a non-custodial sentence. As in the Turner case (1970) where the counsel told the defendant that the judge had indicated that a guilty plea would result in a non-custodial sentence, and a not guilty plea would result in a custodial sentence if he was convicted after trial. The Court of Appeal stated that this placed unacceptable pressure on the defendant when choosing how to plea. (Ashworth, 1994).
We can see that the criminal court procedures seem to follow the crime control model of criminal justice. Due to the high rate of guilty pleas the vast majority of imperative due process protective measures are not put into action. As a result of this, evidence is not thoroughly examined, witnesses are not cross-examined, and the reasons why evidence has been excluded does not come into light. (Sanders & Young, 2000). As Sanders and Young (2000:397) stated ‘the prosecution is not obliged to prove its case beyond reasonable doubt before an impartial tribunal.’ This is because the defendant is condemned the moment he/she says the word ‘guilty.’ (Sanders & Young, 2000).
The high rate of guilty pleas gives the prosecuting authorities hardly any reason to make sure that only appropriately prepared cases are tried in court. Therefore a rise in the number of weak cases that are prosecuted is expected, and also in the number of wrongly convicted innocent people. (Sanders and Young, 2000).
Bibliography
Ashworth, A (1994) The Criminal Process: An Evaluated Study. Oxford: Oxford University Press.
Belloni, F. & Hodgson, J. (2000) Criminal Injustice: An Evaluation Of The Criminal Justice Process In Britain. Basingstoke: Macmillan Press LTD.
Sanders, A. (1997) ‘From suspect to trial’ in Maguire, M. Morgan, R. & Reiner, R. (eds) The Oxford Handbook Of Criminology (2nd Edition), Oxford: Oxford University Press.
Sanders, A. & Young, R. (2000) Criminal Justice (2nd Edition) London: Butterworths.
MARK: 62%
