Since the enactment of the RRAOs, there has been concern that alternative charges can result in “charge bargaining”.173 This concern is most prevalent in respect of the Magistrates’
Court, where both offences must be charged in order to avoid losing liability for the basic offence. Charge bargaining occurs where the defendant either offers or accepts a plea of guilty to the basic offence on the condition that the charge for the aggravated offence is dropped. In response to criticism over this practice (as identified by Burney and Rose), the CPS policy is not to accept a plea to the basic offence alone to expedite court processes.174 The CPS lawyers that we interviewed were adamant that charge bargaining does not
happen, and that a plea to the basic offence will only be accepted if there is insufficient evidence to proceed with the aggravated offence, which is consistent with CPS policy:
“I’d be very surprised if there are any prosecutors, if they’re satisfied they’ve got sufficient evidence of hostility, that they would accept a basic offence. I just don’t think … I think they’d have quite a lot of difficulty justifying that to their superiors afterwards.” (Interview CPS 03)
One defence barrister noted the rigidity of some prosecutors to stick to this policy:
“My experience has kind of been … that where a complainant makes an allegation of a racial or religiously offensive term, however weak the case is otherwise, they definitely prosecute. And they don’t review … they take an approach that’s very similar to domestic violence, which is to say we will prosecute come hell or high water because this is this kind of case, and we take these kind of cases seriously. And for them, taking them seriously means prosecuting all of them.” (Interview Independent Barrister 02) While it was clear that the policy on charge bargaining had changed since the initial
enactment of the offences, some interviewees indicated that attempts at charge bargaining are still common:
172 The latest version of the CPS guidance on prosecuting racist and religious hate crime, published in August 2017, refers to the decision in Henderson, and the “sensible course” being to “adjourn the trial of the underlying offence sine die.”
<http://www.cps.gov.uk/legal/p_to_r/racist_and_religious_crime/>
173 Elizabeth Burney and Gerry Rose, Racist Offences: How is the Law Working? (Home Office Research Study 244, 2002) 80-83. See also Gus John, Race for Justice: A Review of CPS Decision Making for Possible Racial Bias at Each Stage of the Prosecution Process (Gus John Partnership 2003) para 95.
174 Crown Prosecution Service, ‘Racist and Religious Crime – CPS Prosecution Policy’ (n.d.)
<http://www.cps.gov.uk/publications/prosecution/rrpbcrbook.html>
“Almost all defendants … will deny racially aggravated offending. Virtually all. They’ll say
‘I’ll plead to the substantive offence, but I won’t accept the racially aggravated part.’”
(Interview Independent Barrister 04)
The reluctance to accept the aggravated element of the offence is likely to stem from the severe stigma that is perceivably attached to the aggravated offences. One barrister summed up the position as follows:
“When you’re defending, defendants never want to plead to anything that’s got ‘racially aggravated’ on it because they think it means racially motivated – ‘you’re a racist’ … that’s what they think. They’ll never plead to anything that’s got ‘racial’ on it.” (Interview
Independent Barrister 14)
Likewise, a District Judge explained that:
“The reason they fight it is that they don’t want to be branded a racist. … Out of all the things that you could have on your record, having a racial offence on your record is pretty bad.” (Interview District Judge 02)
Charge bargaining can be detrimental to victims and the wider community, who may be given the impression that hate crime is not taken seriously. It can also be detrimental to defendants who wish to maintain their innocence, and who may feel coerced to plead guilty to the basic offence in order to avoid the risk of a harsher sentence if convicted of the aggravated offence.175
However, one CPS lawyer spoke of the pressure to keep hate crime cases out of the Crown Courts176, which could result in charge bargaining in some situations:
“‘Prosecuting that as a racially aggravated case means the difference between it being a summary-only offence that can be tried in the Magistrates’ Court and it being an either-way offence that can be tried in the Crown Court. So it would not be uncommon for us to
… charge a racially aggravated offence ... and the defendant to say, ‘I punched the victim in the face. I called him a bastard. I did not call him a black bastard. I will plead guilty to common assault. I will not plead guilty, and will seek a trial on racially aggravated
common assault; and if you don’t accept my plea, I will elect – as is my right – to be tried in the Crown Court.’ … We will then be faced with the dilemma of do we accept his plea which would mean dropping the racial element. Or do we stand our ground and say ‘Well if you wish to be tried in the Crown Court at the cost of £10,000 per day, that’s what we will do’. And then we will go to the Crown Court where you can bet your bottom dollar we will be faced with a judge who is going to say, ‘Really are we going to have a trial in the Crown Court at the cost of £10,000 per day, the only issue being one word’ … And
175 See Abenaa Owusu-Bempah, ‘Prosecuting Hate Crime: Procedural Issues and the Future of the Aggravated Offences’
(2015) 35(3) LS 443, 451-453.
176 Note that responses to the Law Commission’s consultation also indicate that charge bargaining continues to take place: Law Commission, Hate Crime: Should the Current Offences be Extended? (Law Com No 348, 2014) paras 4.177-4.180. See also paras 5.21-5.26, on the relatively low conviction ratios for aggravated offences and the fall in the number of defendants sentenced for aggravated offences
<https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/316103/9781474104852_Print.pdf>
sometimes Crown Court judges will say, ‘I can tell you that I don’t think it’s in the public interest for you to have that trial … And I will give the defendant the same sentence regardless of whether or not you will prove the use of the word “black”’… And it puts enormous pressure on prosecutors. … And pressure is put on us to avoid having trials in the Crown Court on what the Crown Court judges consider … to be minor matters.”
(Interview CPS 20)
Another defence barrister stated that charge bargaining was most likely to be successful in cases involving “same-race” hate crimes due to the general perception that the jury and/or judge are less likely to accept the racial hostility element of the offence (see section 8.8):
“… you often get sensible prosecutors doing the case in the Crown Court, who take a different view; and sometimes they say, of course we’ll accept the lesser charge. Because they know it’s not very … you know, the racial aggravation it’s either not very strong in points, or it was never very serious … or they’re going to have problems making it stick. I mean, it’s just one person’s word against another’s. Especially when you get a black person saying it against a black person … and the jury look at each other with complete surprise.” (Interview Independent Barrister 01)
The perceptions regarding charge bargaining amongst other interviewee cohorts were mixed.
For example, one Crown Court judge thought that the “prosecution usually accept the plea to the lesser offence” (Interview Crown Court Judge 06). Four independent barristers spoke of their experiences of charge bargaining. One prosecution barrister explained that charge bargaining “does happen occasionally” (Interview Independent Barrister 05). Another gave the following scenario:
“say if the defence, you know, come and talk to me and they say, ‘If he pleads to this one, are you willing to drop that one’ and I don’t have instructions, I’ll call up a reviewing lawyer or an advocacy manager and ask them for their opinion. And sometimes they’ll say,
‘Yeah, if they plead guilty to that, then you can drop the other charges’.” (Interview Independent Barrister 09)
While we found evidence to suggest that charge bargaining still occurs, the majority of Crown Court and District Judges, as well as the majority of independent barristers, expressed the view that it is very rare. In the experience of one barrister, “The CPS … will never accept a plea where there is a racially aggravated offence” (Interview Independent Barrister 08).
Similarly, a Crown Court judge described charge bargaining as “practically impossible”
(Interview Crown Court Judge 01).
According to interviewees, where a plea to the basic offence is accepted by the prosecution, it is usually contingent on the views of the complainant and accepted because the evidence of hostility is weak. In fact, some judges and barristers took the view that the CPS too readily pursue weak hate crime cases, as explained in section 7.4.
What we found in respect of charge bargaining represents a shift in attitude since the RRAOs first came into force, with less “cultural resistance” to the legislation. One prosecutor put it in the following terms:
“When the racially aggravated stuff first came out, we used to get that all time, the defence saying, ‘We’ll plead to the basic offence …’ And we went through quite a few years of difficult times saying no, and getting criticised by courts and judges and all sorts
… But I think that has improved. And if they ask, they’re usually expecting us to say no.
They may just be doing it so they can say to their client ‘Well I asked, and they said no.’”
(Interview CPS 11)
Despite the apparent rarity of charge bargaining, the possibility and perception that it happens remains a cause for concern, particularly since official statistics have shown a low conviction ratio for individual aggravated offences when compared to the corresponding basic versions.177 Moreover, in a report published by the Home Office, Office for National Statistics and Ministry of Justice in 2013, it is noted that, between the initial hearing at the Magistrates’ Court and the first hearing at the Crown Court, the CPS can decide to
downgrade the aggravated charge to the basic offence, to “increase the chances of a conviction”.178
RECOMMENDATION
To ensure adherence to the current CPS policy not to accept a plea to the basic offence alone to expedite court processes, we recommend that records be kept. For example, the CPS could keep a comprehensive record of charges proceeded with after the initial hearing, and of the reasons for downgrading charges from the RRAO to the basic offence in individual cases. These data could alleviate concerns about “charge bargaining”, or they could indicate a need for better enforcement of CPS policy.