ELS Plea Bargaining

Plea bargaining describes a practice during the criminal process whereby a defendant either :- 1.enters a plea of guilty in return for some consideration that results in a more lenient sentence. or 2.Pleads guilty to the lesser of two charges, in return for the more serious charge being dropped.

Plea Bargaining Advantages of the practice of plea bargaining : Plea bargaining is a informal practice : 1.saves a great deal of time, effort and cost in exchange for some apparent concession to the party pleading guilty. 2.Mutually beneficial compromise if the party is actually guilty of the said offence.

Plea Bargaining Disadvantages and criticisms of the practice :- 1.May result in persuading or encouraging a person who is “not guilty” to plead guilty to avoid the length cost and inconvenience and unpredictability of facing multiple charges. 2.Even in border line cases, the defendant may opt to plead guilty either to the lesser offence or to the only offence he is being charged with, for fear of a severe custodial sentence if found guilty.

Sentencing discount This practice of plea bargaining deals with an assurance that a lighter sentence would follow if a plea of guilty is entered. Why? 1. The argument for this practice is that for one the offender is remorseful and the law encourages remorse, in offenders. 2.It saves the court and the parties time, money and energy which otherwise would be wasted in trying to prove guilt. 3.If this plea practice was not available, offenders would not have any reason for pleading guilty, and would choose to go for trial and leave it to prosecution to prove beyond reasonable doubt. 4.In cases of sexual offences, it may save the victim from further embarrassment and duress, as a result of questioning during the trial.

Prosecution and defence bargaining This type of plea bargaining is the earliest one that the offender will face, as its between the police and the defence. It is also known as 'charge bargaining', where one charge is dropped in the course of negotiations in favour of a plea of guilty on another probably lesser charge. e.g manslaughter for murder. (In the US this practice is formalised) In the UK, this practice is informal and left to the prosecution and defence to discuss the possibilities of coming to an agreement. * The defence counsel is required to advice and remind his client that he should only plead guilty if he is actually guilty of the offence.

Sentencing discount The leading case on the issue of sentence bargaining and the defence lawyers responsibilities to his client is :- R v Turner (1970) Facts : The defendant was found to have been 'pressured' to change his plea from not guilty to guilty, in order to obtain a non- custodial sentence. Held : The court of appeal made the following observations : as per Lord Parker CJ. 1) The counsel must give the best advice, in strong terms, indicating that a plea of guilty is a mitigating factor that may allow a lesser sentence. He/she must however be told not to plead guilty unless he or she is guilty. 2) The accused must have a freedom of choice of plea. A plea of guilty must be made freely. 3) there should be open access to trial judge by both counsel. 4) the judge should never indicate the sentence which he is minded to impose.

Plea bargaining R v Turner (1970) Facts : The defendant pleaded not guilty on a charge of theft. He had previous convictions and during an adjournment he was advised by the counsel in strong terms to change his plea; after having spoken to the judge in his chambers; which the defendant knew about, counsel advised that in his opinion a plea of guilty would result in a non-custodial sentence, whereas if he persisted with a non-guilty plea and thereby attacked police witnesses, there was a real possibility of receiving a custodial sentence. The defendant changed his plea to guilty and then appealed to the court of appeal, on grounds that he did not have a free choice in changing his plea. Held: His appeal was allowed on the basis that his plea would have been due to his impression that the views expressed by his counsel were those of the judges.

Sentencing discount The guidelines from the case of R v Turner, was embodied in a court of appeal practice direction (1976) Crim LR 561. The problem with the rule (4) is that although the court is required to not state what type of sentence the judge is minded to apply,.. It is a generally known rule that guilty pleas lead to lesser sentences as opposed to plea of not guilty and subsequently finding guilt. R v Cain (1976) as per Lord Widgery “any accused person who does not know about it should know it.” The problem is the trial judge must not mention it otherwise he or she is seen as exerting pressure on the accused to plead guilty.

Sentencing discount See also the following case, where the trial judges views were seen as undue pressure applied on the accused to change his plea from not guilty to guilty. R v Pitman (1991) Facts : The judge called both counsel to his room and stated that he did not think there was a defence to the charge of causing death by reckless driving. The counsel for the appellant said that pros may not be able to prove recklessness although the accused had admitted he was careless. The trial judge said that the appellants plea is a matter for him and not for the counsel and if he is guilty he should admit...and if he did so he would receive “substantial credit” when it came to sentencing.. Held : The appeal on the sentence was allowed as the trial judge had applied undue pressure on the accused to plead guilty.

Sentencing discount Professor Zander's criticisms on the Practice direction 1976 is that the Court of appeal wants to have it both ways : 'On the one hand, it wants defendants to appreciate that, if they plead guilty they will receive a lesser sentence. On the other hand, it does not want judges to provide defendants with solid information as to how great the discount will be' Contrast this with the practice in the US which is formalised and unambigous as to the result of plea bargaining.

Reform The Runciman Royal Commission on Criminal Justice 1991, in its report, proposed that a more open system of plea bargaining should be introduced to because : 1. reduce,. “cracked trials”.. where accused change their pleas to guilty at the last moment, after going through the ordeal of the trial. 2. Vast majority of cases in the crown court and magistrate's court result in guilty pleas (79% and 81.5%), and thus the operation of the plea bargaining process is important. 3. Plea bargaining should be tackled much earlier and preferably as a formalised process between the defence and prosecution. 4. Sentence discount of 25% and 30% for guilty pleas have been established, and higher discounts should be made available for pleas of guilty that are made at an early stage.