Some scholars argue that until the mid-18th century, plea bargaining was alien to English criminal justice system (Rauxloh, 2012: 27-28). Although there are several accounts of how and when plea bargaining (commonly referred to by English practitioners as guilty plea procedure) first emerged, the best evidence relates to the periods when judges began accepting defendant’s plea without going through a full jury trial. According to Cockburn,
the decades between 1587 and 1590 saw the process of ‘guilty plea’ (cognovit)23 becoming a routine exercise in English courts (1978: 264-265). At every assize he argues, “five or six prisoners” confess and were sentenced without further process (ibid). This later developed into a practice where guilty pleaders were rewarded with a sentence discount (Rauxloh, 2012: 28).
Turner’s case in 1970 was the first decision by the Court of Appeal that laid down a judicial
foundation for the practice of plea bargaining.24 Although this judgement acknowledged the practice of plea negotiation, it did not encourage it.25 The main principles in this case, as expressed by Lord Parker, were that defence counsel may advice his client, even strongly, that a guilty plea, along with a sign of remorse is a mitigating factor capable of attracting a sentence concession (Rauxloh, 2012: 29). Moreover, the accused must make such plea of his volition. The rule prevents judges from engaging in plea bargaining or giving any assurances regarding a sentence discount.
The first sets of guidelines based on the rule in Turner were embodied in the Court of Appeal’s Practice Direction in 1976. It is, however, important to note that along with the principles in Turner’s rule came other principles regarding the defendant’s right to concession in a guilty plea. In the case of R v Cain for instance, Lord Widgery states that defendants are entitled to know that guilty pleas attract lesser sentences and “any accused person who does not know about it should know about it” (Rauxloh, 2012: 30).26 Also, Slapper and Kelly indicated that a number of those who pleaded guilty did so in expectation of sentence discount (2011: 161).
Evidently, practitioners continued to use this practice even as it continues to come under intense scrutiny. As far back as 1978, the English Court of Appeal pronounced its clear objection to any form of negotiation in criminal cases.27 The first instinct of the Appeal Court, according to McConville and Wilson was that plea bargaining was contrary to the
23 The term Cognovit refers to a written confession by a defendant. 24
R v Turner, (1970) 54 Crim. App. R. 352. See also Rauxloh, (2012: 29).
25 R v Atkinson, (1978) 2 ALL ER 460,462. See also, Baldwin and McConville, (1979: 288). 26 R v Cain (1976) QB 496.
27
principles of the adversarial system and must, therefore, be outlawed (2002: 364). Despite this chorus of judicial discouragement and discontentment, the practice continued across the country,28 and with the development of pre-trial reviews in some Magistrates’ Courts, the opportunity for plea bargaining was further enhanced (McConville, 1998: 579).
Like their US counterparts, English legal practitioners, especially in lower courts, apparently do not often heed to the rules laid down by the Court of Appeal, i.e., to advice their clients appropriately on the implication of a guilty plea (Rauxloh, 2012: 30-31). This she argues, is connected to the practical realities of the work, pressure on the courts and indeed the professional relationships between and shared interests of courtroom actors (ibid). Similarly, Mulcahy (1994) in his study of two Magistrates’ Courts in England revealed that a number of interrelated factors, which include the avoidance of the potential cost as well as the unpredictability of trials, fuel the practice of negotiating pleas. It is, therefore, safe to argue that the advantages of flexibility and convenience that plea bargaining presents have made it increasingly impossible for some of the restrictive rules suggested in Turner to be sustained (Rauxloh, 2012: 31). For instance, it allows the parties to simply discuss and agree on what charges to uphold and which to drop before taking the matter to court. On arrival, all that is needed is the defendant’s plea of guilty and no further evidence or witness is required before pronouncing sentence.
The English model of plea bargaining has continued to develop, mainly on a charge bargain basis.29 The Court of Appeal expressly approved this but cautioned that it must be conducted openly.30 Here again is the clash between theory and practice. Plea bargaining by its very nature is unlikely to be an open process. The earliest rules guiding plea negotiations in England and Wales include section 3(2) and 23(3) of the Prosecution of Offences Act 1985, which allows the Crown Prosecutor to terminate charges or to downgrade the charges to less serious offences (Ashworth 1998: 141). Later provisions include paragraph 6 of schedule 3 of the Criminal Justice Act 2003, which substituted section 20 of the Magistrates’ Courts Act 1980, in which the accused is given the right to request an indication on whether
28 Russel L.J in R v Smith (1990) 1 WLR 1311. See also Rauxloh, (2012: 30). 29 R v Winterflood, (1979) Crim LR 263.
30 ibid.
custodial or non-custodial sentence will be the likely outcome if he or she were tried summarily (ibid). Where such a request is made, the court is entitled to respond (ibid).
The Runciman Report (Criminal Justice Report, 1993)31 is a great example of the characteristic of plea bargaining in English courts. It shows for example how defendants plead guilty when they are factually innocent (Rauxloh, 2012: 54). This development was followed by a series of Court of Appeal judgements on the guiding principles for plea bargaining. Lord Auld’s Report (2001) also proposed the introduction of a discount on sentencing for criminal defendants who plead guilty at the earliest stage. Unlike its predecessors, this report went further to recommend that such a scheme should be accompanied with an advance indication to a defendant who is considering pleading guilty (ibid). It also includes the ruling of courts on limits and exceptions on sentence discounts.32 Moreover, statutory provisions were also introduced to guide these practices.
In 2002, the Court of Appeal argued in clear terms that, failure by the trial court to reward a guilty plea with a sentence discount contradicts the “settled practice and general grounds of fairness.”33 This stance by the Court of Appeal makes it mandatory for judges to give sentence concession whenever an accused person opts to plead guilty irrespective of the nature and circumstances of the plea. The Criminal Justice Act 2003, for instance, gives authority for a sentence discount for pleading guilty.34 The extent of sentence reduction for a guilty plea is between one-quarter and one-third of what would have otherwise been the sentence (Slapper and Kelly, 2003: 164). The Crown Prosecution Service under the ‘statutory charging’ scheme introduced by the Criminal Justice Act 2003 also reaffirms the power to determine whether to charge a defendant and what offence to charge. While these powers have been part of the common law, the presence of plea bargaining in the system makes it possible for the prosecution to use discretion in ways that will induce the defendant to plead guilty (Ashworth, 2000: 28).
31 Report of the Royal Commission on Criminal Justice, 6th July 1993. 32
See R v Holington and Emmens, (1985) 7 Cr App R (S) 281, 285 and also R v Costen, (1989) 11 Cr App R (S) 182.
33 R v March, (2002) 2 Cr App R (S) 98. 34
Principally, the English model of plea bargaining emphasises that judges should not be bound restrictively to the contents of any arrangement made between the parties, i.e., defence and prosecution (Slapper and Kelly, 2011: 163). Instead, the judges have retained their complete sentencing discretion (Baldwin and McConville, 1979: 288), and unlike the US model, the prosecution cannot make sentence recommendations to the court. The implication, however, is that it undermines any confidence the prosecution may have in offering the accused promises as to the extent of punishment to be imposed by the court (ibid).
Like most other models, the question of transparency is also a serious issue in the English system, largely because the practice of plea bargaining in England and Wales is carried out privately, resulting in a significant amount of plea bargains, but also ones that are often characterised by either threat or the expectation of sentence discount (Mulcahy, 1994: 411- 413).
Despite these problems, plea bargaining has become prevalent and attractive to the main actors in criminal justice in England and Wales. In his submission to the Royal Commission on Criminal Procedure, Judge Pickles states:
It is good to have a chat with the lads. How tempting to sit down and sort it all out sensibly, wigs off.... The tension of open court has gone. The shorthand writer is absent. No press or public. Even the accused - around whose fate it all revolves - is not there.... In this easy atmosphere, Turner or any other case can be overlooked in a genuine effort to find a sensible short-cut, off the record (ibid).
The development of the English model of plea negotiation is therefore similar to that of the general nature of criminal law system, which uniquely derives its motivation from institutional underpinning that “allows developments of the justice system in a way that is more flexible and likely to happen more quickly than more formal jurisdictions where changes in the penal code need many years to work through” (Lewis, 2006: 179).