Law: Please, m'lud, I'll have that sentence: Plea bargaining looks attractive: it can cut costs and shorten cases. But it has dangers. Christopher Sallon and Anthony Burton argue for a tighter form of courtroom deal

TWO out of three judges and 90 per cent of barristers are in favour of plea bargaining, according to the survey of Crown Court trials published this week by the Royal Commission on Criminal Justice.

Plea bargaining - a plea of guilty in return for a lighter sentence - is integral to the vast majority of criminal cases heard in the United States. Popular perception of the procedure is of an overworked, corner-cutting public defender inveigling an innocent client into striking a bargain with a politically motivated prosecutor, encouraged by an indolent judge bent on the quickest route to a conviction.

Critics rightly condemn such practices but often ignore the realities of the English system, which almost invariably meets guilty pleas with reduced sentences, and therefore encourages guilty defendants to plead guilty. The reasoning behind this policy is that an admission of guilt is regarded by the courts as a sign of contrition, and those who spare witnesses the ordeal of giving evidence and save the state expense should be

rewarded.

Criminal lawyers are often called on to advise defendants facing charges supported by overwhelming evidence. The primary concern of those clients is whether there is a likelihood of acquittal and what sentence can be expected. But since their lawyers have to guess, on the basis of guideline cases or of extraneous factors such as a judge's reputation for leniency, the reassurance being sought is rarely offered.

A delicate game of etiquette is played out between client and lawyer, in which the question of guilt is put to one side - it would be professionally improper for a lawyer to contest a case once told by the client of his guilt. Lawyers cannot always confirm whether imprisonment is inevitable on a guilty plea; nor can they estimate any reduction in term.

Until the Seventies, lawyers regularly saw the judge before a case, to 'seek an indication'. The defence barrister would assert his client's intention to fight the case but would suggest that if the judge could indicate the sentence he had in mind were the defendant to plead guilty, the trial could be considerably shortened. Conversations of this kind, ending in an indication from the judge, were unrecorded and coded, with plenty of room for misunderstanding. A number of defendants who found their way to the Court of Appeal complained that the sentence indicated was very different from the one imposed, and that undue pressure had led to their guilty plea.

Two cases (Turner in 1970 and Warth in 1991) emphasised the importance of the judge saying nothing that could appear to induce a plea of guilty. A judge can indicate the kind of sentence but never the length, and must make it clear that it will apply whether the defendant pleads guilty or fights the case and is convicted. As a result, judges have become reluctant to see counsel on the question of sentence, fearing allegations of

impropriety.

The current view in English courts - that defendants face being coerced into pleading guilty - is based on a series of unspoken assumptions: that the defendant is vulnerable and unable to make an informed choice, that encouraging a plea bargain is contrary to the client's interests and, third, that the judge's involvement in a plea deal is somehow corrupt.

This attitude is viewed with curiosity from across the Atlantic. There, as here, litigation has always been viewed as the safest test of justice. But the US view began to diverge from the English Bar's in the Prohibition years, when crime in their cities rose sharply. The US legal profession, at one time opposed to plea negotiation, now defends it vigorously for the most part. But this must be seen in the context of a common law system that has grown markedly apart from our own. Political motives often lie behind the prosecutor's plea negotiations, as he tells the judge the sentence he regards as appropriate. Prosecutors and defence attorneys enter into a contest in which the indictment is overloaded in the hope that additional charges can be used as bargaining counters to induce a guilty plea to at least one charge.

Safeguards have been introduced, however. The US law requires disclosure of guilty pleas involving an agreement, so that the terms of the bargain become part of the record. If the court finds the terms unacceptable, the defendant may withdraw his plea. Furthermore, the judge examines the defendant in open court to be satisfied that the plea represents 'a voluntary and intelligent choice among known alternatives'.

The English criminal justice system accepts plea negotiation between prosecution and defence, provided it does not extend beyond seeking to know the type of sentence the judge has in mind. But the time has come to consider whether a specific form of plea indication should be introduced, which would give an accused the right to know what sentence may be given if he or she pleads guilty.

Plea bargaining may eliminate long and costly trials, according to a Bar working party chaired by Robert Seabrook QC. He has in mind cases that are contested on the flimsiest basis, against overwhelming evidence and where the uppermost consideration for the defendant is the sentence. These cases consume great quantities of court time. However, cost may prove to be the catalyst for change, but it can never be the justification. What is essential is to create greater flexibility in the criminal justice system to the benefit of both the defendant and the court.

So we must distinguish a form of plea indication from its cruder American cousin, plea bargaining. And, to meet the criticisms in Turner, it is vital to create safeguards addressing the legitimate anxieties of those who fear that such a measure would extract guilty pleas from the innocent. Minimum safeguards require that the defendant should at all times be represented and initiate the bargain. The prosecution should not be involved in bargaining over the plea indication, although he should be present throughout the procedure. Lawyers and judge must satisfy themselves that the defendant is able to make an informed choice, with the judge examining him or her in open court to confirm that the plea is voluntary. Finally, a defendant should be able to withdraw his plea or to appeal against conviction.

Provided safeguards are imposed and adhered to, plea indications would give the defendant the right to know what sentence would be received on a guilty plea, and would preserve shrinking public funds. Benjamin Franklin observed that necessity never made a good bargain. It may be that in this instance, it will.

Christopher Sallon is a barrister and a member of the Bar Council. Anthony Burton is a solicitor and a partner with Simons Muirhead & Burton.