What is plea bargaining and when does it come into play?

Plea bargaining

Plea-bargaining is a process which occurs in relation to criminal offences whereby the offender agrees to plead guilty to a lesser charge thus dispensing with the need to go through the whole trial process to prove their guilt. Plea bargaining most often occurs in the following scenarios:

  • where a defendant testifies against a co-conspirator;
  • where a lesser charge is offered due to the difficulty of proving the greater charge.

The Code for Crown Prosecutors states that prosecutors should only accept the defendant’s plea if they think the court is able to pass a sentence that matches the seriousness of the offending, particularly where there are aggravating features. Prosecutors must never accept a guilty plea just because it is convenient.

The court must be informed on what basis any plea is advanced and accepted. Where a defendant pleads guilty to the charges but on the basis of facts that are different from the prosecution case, and where this may significantly affect sentence, the court can hear evidence to determine what happened, and then sentence on that basis.

When deciding whether to accept a plea to a lesser charges, the Code states that prosecutors should ensure the interests and, where possible, the views of the victim (or the victim’s family) are considered, as well as whether it is in the public interest to accept the plea.

Testifying against a co-conspirator

The process of plea bargaining is one which is used by prosecutors to secure the testimony of an individual accused of a crime against a co-conspirator who has been charged with a more serious crime.

In many circumstances, an individual will be able to negotiate a reduced sentence by pleading guilty to a lesser charge in exchange for agreeing to certain conditions.

Plea bargaining in this scenario will often occur when the evidence against an individual is overwhelming.

Why is this regarded as a desirable position?

The individual charged with the crime will receive a lesser sentence as they are charged for the lesser offence to which they pleaded guilty. It is also viewed as desirable by the criminal justice system as it enables them to sentence a co-conspirator who is more likely to be charged with a much more serious crime.

Difficulty of proving a greater charge

In certain cases, such as rape, the prosecution may secure a guilty plea and a charge for a lesser offence than rape such as sexual assault. In other cases, they may opt to pursue charges for offences which are not sexual but which may have occurred as part of the attack, such as a violent attack.

Why is this regarded as a desirable position?

This is desirable for the accused as they are charged with a lesser crime than rape and would serve a smaller prison sentence. It may desirable to the criminal justice system as it removes the requirement to prove lack of consent in the rape case – something often difficult to prove in court. The individual may not get a sentence as long as they would if proven guilty of rape, but at least some form of sentence will be secured.

The different types of plea bargain

Plea bargains can usually be split into the two categories:

  1. A charge plea bargain will enable an accused individual to plead guilty to a lesser crime than the one they are charged with – in most cases falling into one of the two categories outlined above.
  2. A sentence plea bargain occurs when a judge informs a defendant of what sentence they will receive if they plead guilty – it is then up to the defendant to accept or reject the plea bargain.

What should an individual who has agreed to a plea bargain ensure happens?

To ensure that the plea bargain actually happens, an individual who has agreed to a plea bargain should:

  • Ensure with the help of their lawyer that the time and the date when the plea bargain was made are stated on the documents which outline the terms of the deal. The defence lawyer should negotiate and review all the terms of the plea bargain before it is agreed in writing.
  • Reference to the written plea should be made during court proceedings – this will ensure the existence of the plea bargain will become a matter of court record.
  • The person subject of a plea bargain should act in accordance with the terms of the plea bargain which will often, for example, require testimony in court.

Has the process of plea bargaining come in for criticism?

The process of plea bargaining has come in for criticism in relation to:

  • rape convictions;
  • arms dealing.

Rape convictions

In rape cases it is often felt that the courts are too ready to accept a guilty plea for a lesser charge to remove the requirement of proving consent. This is little consolation for the victims of the crime who have suffered such a terrible ordeal and see the offender being sentenced to a much lesser jail term than the one which they feel they deserve. It may also not be desirable to see rapists able to walk the streets much earlier than the sentence for rape would allow.

Arms dealing

High profile companies found to have been selling arms and weapons illegally have been able to agree lesser sentences in addition to paying huge sums of money to the state – this is a decision which has come in for heavy criticism from campaign groups.