Criminal Process, Plea Bargaining and the UK - Coursework Example

Plea Bargaining and the UK Plea bargaining and abbreviated trials have emerged as the most popular techniques of alternative procedures. Plea bargaining is a process of negotiation, in which the prosecutor and defence counsel come to an agreement, wherein they attempt to resolve some of the criminal charges levelled against the defendant, without a trial.1 Courts, all over the world, labour under an overload of work, due to the presence of a very large number of cases. Thus, the courts are under tremendous pressure to judge cases. The outcome of this situation is the development of alternate procedures to resolve cases, in a quick and efficient manner.2 In the US, plea bargaining assumes two forms, namely charge bargaining and sentence bargaining. In charge bargaining, negotiations between the defence and the prosecution, result in the elimination of some of the charges against the accused. On the other hand, in sentence bargaining, the charges framed against the accused are accepted, and the defence counsel and prosecution negotiate the sentence and punishment.3 However, plea negotiations, in general, entail sentence and charge bargaining. Some of these negotiations may be simple, while others may be complex and protracted.4 As such, a plea bargain can be defined as a situation, wherein the defendant is rewarded for pleading guilty. This is quite common in England and Wales, and defendants plead guilty, in order to obtain a reduced sentence. In the US, on the other hand, a well-established and regulated system of plea bargaining is in force. In the US the prosecution and defence are in fact encouraged to openly arrive at a compromise. Moreover, plea bargaining is a process that saves time and resources, and as a consequence promotes the efficiency of the criminal justice system. It is a mechanism to resolve cases and avoids the cost of trial proceedings, such as the cost involved in investigation, prosecution, and trial. Thus, valuable resources and time are not wasted, and courts often resort to this mechanism, in order to resolve cases, before their going to trial.5 However, there is considerable criticism against plea bargaining. In England and Wales, the government established the Plea Negotiation Framework for Fraud Cases. The objective of this Framework is to save resources, while preserving the impartiality and reliability of the criminal justice system.6 It was claimed by the Attorney General to have been specifically designed for the English criminal justice system. This Framework establishes a mechanism that does not require the defendant to assist the prosecution. Moreover, it is different from the plea bargaining practiced in the US. In England and Wales, it is commonplace for a defendant to negotiate with the prosecution for a reduction in sentence, by submitting a plea of guilty.7 Under plea bargaining, the outcome can be predicted in advance, and considerable reduction in the time and costs, involved in a trial, can be achieved. The defendant can directly negotiate with the court, regarding the length of the sentence. As such, the Framework establishes unambiguous principles for plea bargaining in the UK. 8 The Framework introduces the mechanism of plea bargaining without harming the integrity of criminal justice system in England and Wales. It has been designed after analysing the experiences of the US federal practice. The drafters of the Framework established clear and transparent guidelines with regard to prosecutorial discretion. It introduces several internal review procedures that have to be carried out in the prosecution offices. 9 As such, in the UK the outlook towards law and sentencing is practical. It is the objective of the Framework to refrain from imitating the system extant in the US. Nevertheless, a few of the advantages, such as timely resolution of issues and better use of resources are being adopted by the Framework. However, the American model of plea bargaining is a more advanced process and it enshrines legal principles and procedural laws that create a healthy atmosphere, in which the prosecution and defence can negotiate. 10 In the US, plea bargaining is more practical and stipulates fewer legal requirements. According to the House of Lords, plea bargaining had the capacity to tempt a defendant to plead guilty. Thus, it exerts unwanted and unlawful pressure on the defendant. However, there is considerable ambiguity regarding the extent of the bargaining power of the prosecutor and how it should be exercised. 11 Whilst recognising plea bargaining as an established practice in English law, the House of Lords opined that engendering a very high pre-trial differential, undue pressure could be imposed on the defendant, causing the latter to plead guilty. This could lead to a miscarriage of justice. In England, the government established the Carter commission in the year 2007 to review the existing use of imprisonment. It recommended the constitution of a permanent sentencing commission in England and Wales. The underlying objective of the commission was to improve transparency, predictability, and consistency of sentencing.12 The process of plea bargaining, involves considerable discrimination for ethnic minorities, in the UK. In this nation, defendants from the black community are more inclined to contest a case before a jury than the other communities. A guilty plea, results in drastically reduced punishment, thereby implying greater punishment for those who do not plead guilty, which results in indirect discrimination.13 Royal Commission on Criminal Justice was constituted in response to the false imprisonment and belated release of Guildford Ford and the Birmingham Six, from incarceration. The prosecution had established on false premises that these individuals had indulged in terrorist bombings. This commission concluded that many defendants were likely to plead guilty, at a later stage of the legal proceedings.14 This would result in a cracking of the case filed against them. The Proceeds of Crime Act 2002 is of great relevance to plea bargaining. Considerable dispute arises, with regard to proceedings that pertain to the confiscation of assets. It becomes very difficult to arrive at reconciliation, especially when such proceedings are seen in the light of the recommendations of the Fraud Review, which favour the provision of much wider sentencing powers to the courts. Government policy had always required criminals to be deprived of their ill-gotten gains. This creates considerable difficulty with regard to the system of plea bargaining. A major question that arises is whether the accused will be deprived of his assets, on admitting to his guilt; and this is contrasted by the situation, in which a criminal is permitted to retain a major portion of the proceeds of a crime, subsequent to a successful negotiation with the prosecution. Any such negotiation has to make provision for acceptability by the general public. Taking these factors into account, the incentive provided for admitting guilt is not very attractive. This could seriously impact the popularity of plea bargaining. For example, the UK chemical firm, Innospec entered into a conspiracy to corrupt, with regard to the supply of lead free fuel to Iraq and Indonesia. In order to escape criminal sanctions, this firm pleaded guilty and was merely penalised for $40.2 million.15 This global settlement was disparaged, as encouraging a civil penalty for what was essentially a criminal offense. This depicts the drawback with plea bargaining.16 In another case, Robert Dugall, had made unauthorised payments to Greek officials. In the first instance, the Court made a sentence involving imprisonment, as the offense was criminal in nature. However, the Court of Appeal, suspended this decision, when the prosecution informed it that they had entered into negotiations with Dugall, which resulted in his pleading guilty.17 However, in the case of Julian Messant, the court inflicted a sentence of imprisonment on this insurance broker, for having made several bribes to the officials of Costa Rica. However, in the BAE Systems case, the plea of guilty enabled this company to evade criminal sanctions. This company was merely directed to pay a £500, 000 fine and pay Tanzania compensation to the tune of £29 million.18 These cases disclose that the courts have upheld the agreement reached between offenders and the Serious Fraud Office. However, there was considerable criticism from the courts, regarding these negotiations, which raises serious misgivings about the continued acceptance of these agreements. The situation is alarming for the corporate sector, and this requires clarification from the Serious Fraud Office. Furthermore, self-reporting may not prove to be the best strategy for companies that indulge in fraud. The enactment of the Bribery Act 2010 is expected to enhance such uncertainty.19 In the year 2004, the Anti – trust division approached the court, seeking the extradition of Ian Norris, from the UK. Norris had been charged with bringing about the destruction of evidence, tampering with witnesses and a price fixing conspiracy. Extradition was approved by the court, and Norris’ appeal to the High Court was set aside. Thereafter, he approached the House of Lords, which declined to hear this case.20 Plea bargaining is a negotiation process in which the prosecutor reduces one or more charges and the duration of the sentence, in exchange for a waiver of the right to a trial and a plea of guilty to the reduced charges. This process involves a situation, wherein it is beneficial to the accused and the prosecution to come to some agreement. In general, plea bargaining, takes place in cases where the evidence of guilt is compelling. In cases where the evidence is inconclusive, the government has the choice of circumventing acquittal by the process of plea bargaining. 21 Plea bargaining creates problems for various reasons, and some of these are discussed in the sequel. The criminal law imposes draconian penalties, which provides prosecution with the potential to subject the accused to unconscionable duress. Thus, a few of the guilty pleas seem to be the outcome of coercion and not any voluntary move by the defendant.22 In instances, where it would be difficult to establish guilt, the prosecution has an incentive to encourage the accused to plead guilty. In other words, if acquittal at trial is likely, the prosecution is keen to ensure a plea of guilty. Moreover, the increased caseload compels prosecutors to ignore the weakest cases. Plea bargaining is also favoured by many defence lawyers who do not have adequate resources to investigate a case thoroughly. 23 Thus, plea bargaining plays an essential role in the criminal justice process. Moreover, plea negotiation is an essential component of the American criminal justice system. According to the President’s Commission on Law Enforcement and Administration of Justice, certain processes in the criminal justice system result in suspicion and uncertainty. However, this was not the case with the negotiated plea of guilty. Plea bargaining invokes a number of issues concerning the integrity of the criminal justice system. It raises questions about criminal guilt and breach of constitutional rights.24 Plea Bargaining is an old concept that had been prevalent in England and Wales. Although it had been practised from quite a long time, it was only recently that guidelines were provided by the Court of Appeal, regarding sentencing issues. A system of plea bargaining is expected to improve efficiency and provide several benefits to the accused and the prosecution. A plea bargain brings forth a plea of guilty from the defendant, at an early stage of the proceedings. However, this has to ensure fairness, which constitutes the basis of the rule of law and the English legal system.25 Obviously, a poorly designed or improperly controlled system will result in overbearing pressure being exerted on the defendant. Such coercion could cause the innocent to plead guilty on occasion. Any system of plea bargaining involves pressure to plead guilty. Consequently, the legitimacy of any such system depends on the extent to which the accused is permitted to make a rational choice on the basis of the probable sentence outcome.26 Legitimate coercion to plead guilty is the outcome of certain sources that have to be balanced with great care, if injustice is not to take place. These sources are, the discretion enjoyed by the prosecutor to choose the charges for trial and the reduced charges for a plea bargain.27 Another source pertains to the degree to which a rule is effected in the sentencing structure applicable to the offence, which substantially alters the precision with which punishment to be inflicted upon the defendant can be anticipated. The last source is that of the severity of sentencing. This permits considerable variation in the sentence that a defendant, resorting to plea bargaining, may receive.28 A plea bargaining system depends on the sentencing practice adopted by a court. The defendant and the prosecution view the likely sentence and then come to an agreement regarding the submission of a plea of guilty. In order to systematise this situation, the Sentencing Guidelines Council provided a standard relating to sentencing in cases of fraud. These guidelines provide detailed instructions and a sentencing matrix that a judge can refer to. This matrix is founded on a number of factors, and some of these are the value of the loss that had occurred and the seriousness of the offence. This initiative exercises a vast influence on the proficiency and impartiality of plea bargaining.29 Due process, in law, entails certain requirements, and this renders plea bargaining anomalous, especially when viewed from the perspective of the guidelines issued by the Court of Appeal. This is contrasted by the requirement that there should be parity of treatment between the defence and the prosecution. Consequently, it would be patently incorrect, if the judge were to hear one side of a case. However, there is no requirement that the accused should be present or that the accused should be apprised of what transpires in off stage discussions.30 From this it follows that the discussions relating to plea bargaining do not constitute a part of the formal trial. In fact, plea bargaining discussions take place in the judge’s room. In addition, if such discussions were to be deemed to be a part of the trial proper, then there would be a violation of the fundamental principle that the accused is entitle to be present at every stage of the trial. 31 Such discussions, in the judge’s room, tend to render the position of counsel difficult. There is a strong of clash of interests, on account of attempting to preserve confidential information that is provided to the counsel, while discharging professional duties to the client. 32 In R v Agar, the Court of Appeal opined that discussions where the accused was not present were to be conducted, only as a last resort. 33 The Appellate court further stated that this particular case revealed the extent to which injustice could transpire, if the accused were not permitted to be present during the discussions. In this case, the judge had instructed that the accused was not to be informed, even that proceedings had been conducted in the judge’s room.34 R v Peverett, exemplified a case, where an exceptionally lenient sentence was provided, and the Crown was unable to appeal against this injustice, due to its involvement in the negotiated sentence.35 This case generated considerable debate, regarding the practice of plea bargaining, and whether it should be discontinued or permitted only in a formal setting. Another suggestion was that plea bargaining was to be conducted in the open. In this case, a child abuser and a pervert, was able to escape punishment, due to the stratagem of plea bargaining. It is the commonly held opinion that in a legal system which assumes innocence and allows every person to go to trial; punishment for those found to be guilty after trial, is to be more stringent. This view stems for the fact the accused had employed his fundamental right and pleaded not guilty.36 Plea bargaining has to be minimised to the extent possible, till such time as reliable guarantees that prevent inappropriate plea bargaining, are enforced. Bibliography Bribery Act 2010. Chemical Company Innospec Pleads Guilty to Indonesia Bribery, 2010, retrieved 2 March 2011, . City AM, Clarity on plea bargaining is needed, 2011, retrieved 2 March 2011, . Criminal Justice Process, Encyclopedia of Crime and Justice, 2002. Cynthia Alkon, Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice Systems?, retrieved 28 February 2011, . D Watson, ‘The Attorney General’s Guidelines on Plea Bargaining in Serious Fraud: Obtaining Guilty Pleas Fairly?’, The Journal of Criminal Law, vol. 74, no. 1, 2010, pp. 79 – 90. G John, Race For Justice, retrieved 2 March 2011, < http://www.cps.gov.uk/publications/equality/racejustice.html>. G Slapper & D Kelly, The English Legal System: 2009 – 2010, Taylor & Francis, 2009, p. 502. Guilty Plea: Plea Bargaining, Encyclopedia of Crime and Justice, 2002. J Jaconelli, Open justice: a critique of the public trial, Oxford University Press, 2002, p. 57. JM Jacobson, Antitrust law development, American Bar Association, 2007, p. 763. Linklaters, Regulatory Investigations Update, 2010, retrieved 2 March 2011, < http://www.linklaters.com/Publications/RI/20101112/Pages/UKCases.aspx>. LJ Siegel, Introduction to Criminal Justice, 12th edn, Cengage Learning, 2009, p. 434. M Boll, Plea Bargaining and Agreement in the Criminal Process: A Comparison Between Australia, England and Germany, Diplomica Verlag, 2009, p. 25. M Gough & J Jacobson, Creating a sentencing commission for England and Wales: an opportunity to address the prison crisis, retrieved 1 March 2011, . Nick Vamos, Please Don’t Call it “Plea Bargaining”, retrieved 28 February 2011, . P Bergman & S Berman, The criminal law handbook: know your rights, survive the system, 11th edn, Nolo, 2009, p. 441. PC Stenning, Accountability for criminal Justice: selected essays, University of Toronto Press, 1995, p. 291. R v Agar [1990] 2 All ER 442 CA. R v Peverett [2001] 1Cr App R 416. RJR Levesque, The psychology and law of criminal justice processes, Nova Publishers, 2006, p. 259. The Proceeds of Crime Act 2002. Read More