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A Double-Edged Sword: The Transactional Nature of Plea Bargains

AnalysisA Double-Edged Sword: The Transactional Nature of Plea Bargains

 

 By Callum Stevens, Law student at Christ’s College, Cambridge, Aspiring Criminal Barrister

 “How do you plead?”

“Guilty”.

And breathe. The defendant has pled guilty. Such a declaration is final. There’s no going back. The defendant will be credited with a 33% reduction in sentence. The CPS no longer need to put their case to proof in open court; they need not prove anything beyond reasonable doubt, nor can issues of procedure or evidence be put against them. This has cost 1/9th of what a contested trial would have[1] and the savings on time and other resources have been invaluable.

Both sides are ostensibly satisfied. Did the defendant commit the offence they have just pled guilty to? It doesn’t matter. The CJS has delivered justice. One more case from the COVID-19 backlog has been dealt with.

For the majority of cases the above transaction is the reality and full extent of Lady Justice’s intervention. Guilty pleas have long been central to the criminal justice system with 66% of cases in Q1 of 2023 seeing a plea of guilty entered. Without them, the courts would have to operate at a speed 2.38x faster[2] to maintain their current level of case output. However, such heavy reliance on guilty pleas and plea bargaining threatens negative repercussions: they become transactional in how the defendant can see a reduction in sentence for the time and resources saved in not pursuing a trial and these incentives are there to induce a guilty plea irrespective of whether the defendant committed the alleged offence. Undeterred, plea bargains, and their transactional undertones, remain necessary to ensure justice on a broader scale; resources go further and enable the courts to deal with more cases. However, this threatens potential injustices on a smaller scale regarding possibility of the innocent pleading guilty as well as foregoing the expected right to a fair trial.

The socio-political shift toward Managerialism within the public sector has likely played a huge role in the prominence of guilty pleas and plea bargaining. The criminal justice system has been tasked with untenable quotas and has been armed with insufficient resources which necessitate guilty pleas as means to an end. The consequences that follow, paired with the extent of reliance on plea bargains, have become symptoms of an underfunded justice system.

The Role of Managerialism on Plea Bargains

During the early 1980s, the Conservative Government became increasingly aware of the expenditure and resources consumed within much of the public sector. The Criminal Justice System was no exception and worries began to arise relating to the perceived lack of accountability to their use. In response, successive governments have pushed for ‘new public management’ with efficiency, effectiveness and economy being labelled the trinity which public sector officials were to worship[3].

This mantra quickly embedded itself within the system, becoming endorsed by courts who sought to provide reason for sentencing discounts. Lord Taylor CJ in Buffery [1992] stated the rationale for plea bargains, noting trials to be “very costly, both in time and money” as well as how they cause “stress to jurors… [and] judges who try them”. This, he goes on to say, justifies the court in “applying a considerable discount where somebody does…plead guilty”. In return for saving the system the time and cost of pursuing a trial, it offers to soften your sentence: the transactional undertones are clear and the shift toward managerialism inexorable.

It is perhaps this reason which saw the sentence discount principle first put onto statutory footing by s48 Criminal Justice and Public Order Act 1994, subsequently amended in 2003[4] and most recently in s73 Sentencing Act 2020. Sections 73(1) and (2) provide that:

Where a court is determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, the court must take into account the following matters –

  • the stage in the proceedings for the offence at which the offender indicated the intention to plead guilty, and
  • the circumstances in which the indication was given.

While the statute continues, there is no explicit reference that a discount is to be awarded. Instead, judges are to turn to the common law to see how the discount should apply (see Buffery, for example), while also having regard to the Sentencing Guideline Council’s relevant suggestions. Generally, sentence reductions range from 10% to 33% and are based broadly on the point in the process that the defendant entered a guilty plea.

The Dilemma

Guilty pleas offer benefits further to saving time and resources; they relieve victims of reliving traumatic events via trial and, in consequence to saving time and resources, allow the courts to ensure more cases are dealt with, arguably seeing a wider breadth of justice bestowed.

Non-procedural arguments for plea bargains have been advanced by academics and the judiciary alike[5], with some suggesting the reward is necessary for a guilty plea given that it shows remorse on behalf of the defendant. These prove less convincing. The Sentencing Guidelines makes explicitly clear that remorse is a mitigating factor to be considered separately from guilty pleas. This makes sense as the sentence reduction is offered in exchange for pleading guilty, coming before the fact. Therefore, beside arguments that we are saving victim’s the turmoil of trial, the purpose of plea bargaining appears almost entirely transactional on behalf of the court. This is not, however, a bad thing in and of itself; it is a necessary and tested coping mechanism of an underfunded system tasked with impossible targets.

That being said, it does not come without its drawbacks which this article suggests to be twofold: (i) incentivising the innocent to plead guilty, and (ii) foregoing the adversarial system of justice, not putting the Crown’s case to proof in open court.

While it may be difficult to understand why the innocent may plead guilty, context often provides reason. Take the following hypothetical: that a defendant is being prosecuted for a theft he didn’t commit. He has, however, committed several similar offences in the past and this bad character evidence will be read to the jury. Despite the judge’s impending reminder that his previous convictions are to be used with caution, his barrister has made clear the weight that it will carry with the jury. The defendant is sure he will be convicted. In this instance, accepting two-thirds of maximum sentence instead of rolling the dice and going to trial is a logical consideration. As such, the reliance on plea bargaining to ensure resources are saved and spread wider across the system, purporting to deliver more justice, risks individual instances of injustice in the process.

Further to this, the implication of guilty pleas and plea-bargaining means that the Crown’s case cannot be scrutinised in open court and questions of procedure or disclosure cannot be put to them. This, of course, is the whole point. The case does not go to trial and both money and time are saved in the process. From the managerialist perspective, this is a non-issue. However, there comes a discomfort with this when the likely reason for a guilty plea was such an attractive sentence discount offer.

Many have attempted to reason these issues away on account of autonomy. They suggest that the defendant is free to make a choice and the choice is theirs in its entirety. However, being stuck between a rock and a hard place is not reflective of autonomy, but rather offers the ability to choose what the defendant believes to be the lesser of two evils. A choice made from two, so obvious as to be predictable, is not a choice at all, despite the formality of selection.

At a time when the criminal courts are under ever-crushing pressure, the fact that plea bargains are transactional is not in and of itself an issue. It allows the system to deal with cases at a sufficient speed. However, the collateral consequences of that can be cause for concern; the system’s desperation to have cases concluded may begin to undermine justice, resulting in adverse outcomes. In any event, this does not appear a solvable issue until criminal justice is properly funded.

Callum Stevens, Law student at Christ’s College, Cambridge, Aspiring Criminal Barrister

[1] Home Office, Costs of the Criminal Justice System 1992, Vol 1, p16.

[2] The average time from case receipt to completion in the Crown Court for Q1 2023 was 168 days. It was 388 days for cases with ‘Not Guilty’ pleas. Data from The Ministry of Justice’s: ‘Criminal court statistics quarterly: January to March 2023’, https://www.gov.uk/government/statistics/criminal-court-statistics-quarterly-january-to-march-2023/criminal-court-statistics-quarterly-january-to-march-2023, Accessed 26/07/2023.

[3] Sanders A., Burton M. & Young R., (2010), Criminal Justice, OUP Oxford.

[4] Section 114, Criminal Justice Act 2003

[5] R v Karim [2005] at [31].

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