Libby McVeigh is Legal and Policy Director for Fair Trials, a London and Brussels based nongovernmental organization campaigning for the right to a fair trial globally. It is currently campaigning for better defence rights standards in Europe and is also leading research into the use (and abuse) of plea bargaining across the globe.
New guidelines incentivising people accused of criminal offences in England and Wales to plead guilty as early as possible were proposed last week. While existing rules allow for a maximum one-third reduction in the sentence to those who plead guilty at the ‘first reasonable opportunity’, this benefit is now only available to those who plead guilty at their very first court hearing, with the available reduction falling on a steeper sliding scale thereafter.
The Sentencing Council responsible for such matters has emphasised the efficiency gains and cost savings resulting from the swift disposal of cases, and the development has been welcomed by organisations which provide support to victims of criminal offences who will be “spared the stress and anxiety of a trial”. Little attention has been paid, however, to the impact on the rights of criminal defendants who are being encouraged to waive their right to the full trial process which undoubtedly remains the best method for preventing injustice.
Numerous cases illustrate the miscarriages of justice which can result when individuals are incentivised to plead guilty without adequate safeguards. The US case of Phillip Bivens, Bobby Ray Dixon and Larry Ruffin shows how innocent people can be persuaded to confess to a crime they did not commit – in this case the rape and murder of a young mother in front of her 4-year old son – if the stakes are high enough and fair trial rights protection absent. And while a guilty plea may be quick and easy to make, the process of reversing the injustice is far more complex and lengthy. Larry Ruffin died of a heart attack after 23 years in prison before his name was cleared, and Bobby Ray lost his battle against cancer only weeks before his full exoneration. Phillip Bivens regained his freedom 30 years after his arrest and still awaits the conclusion of his civil lawsuit for compensation.
The challenges which ‘plea bargaining’ presents to fair trials protections were highlighted at a recent meeting of criminal justice experts in the US, where 95% of all criminal cases are now resolved through guilty pleas. With an estimated 20,000 factually innocent people in prison for crimes to which they pleaded guilty but did not commit, the drivers of injustice were identified as including:
- the excessive trial penalty and the unaccountable power of prosecutors, who are rewarded for volumes of convictions rather than quality of investigations and routinely over-charge to obtain guilty pleas;
- overworked and underpaid public defenders who are financially incentivised to dispose of cases quickly by encouraging clients to plead guilty;
- income inequality leading defendants who cannot afford to pay bail to plead guilty to avoid pre-trial detention; and
- the erosion of fair trial rights protection in the context of guilty pleas, including the right against self-incrimination, access to evidence, judicial oversight and the right to appeal.
The concerns raised in the US will hopefully be taken into account during the consultation launched by the Sentencing Council last week. Consideration should be given not only to the impact of legal aid cuts on the advice given to those considering a guilty plea, but also the inter-relationship between the proposed guidelines and the Better Case Management scheme (BCM) rolled out across UK courts in January 2016. With changes made by the BCM to the timing and extent of disclosure by the prosecution, defendants will now be required to enter their plea at the first hearing on the basis of the limited evidence included in the Initial Details of the Prosecution Case rather than the full case papers which be provided only after the opportunity to obtain the maximum reduction in sentence has passed.
As experiences in the US and current developments in England and Wales demonstrate, questions about the fairness of plea bargaining systems need to be pushed further up the global human rights agenda. Plea bargaining is on the rise worldwide, sometimes under the influence of US funding for global rule of law reform, and countries that introduce such practices tend to rely on them to resolve a larger percentage of their criminal cases over time.
Fair Trials and its pro bono partner, Freshfields Bruckhaus Deringer, are currently conducting a scoping study that aims to establish the global reach of the practice, examining criminal procedure in approximately 70 national jurisdictions globally to see whether plea bargaining exists and to identify its defining features. A more detailed study in a select number of jurisdictions will involve analysis of the operation of plea bargaining and the extent to which key human rights safeguards are enjoyed in practice.
The results of the research will be published in later 2016, including recommendations for a human rights based approach to plea bargaining which we hope will inform the development of such practices, not only in England and Wales, but in jurisdictions across the globe. The human rights implications of an inefficient criminal justice system demand that solutions to lengthy procedures are found. But the failure to analyse the impact of guilty plea regimes on fair trial rights protection is resulting in the introduction of practices which already do result in injustice and will gradually erode trust in the rule of law. We hope that a global commitment to reform plea bargaining processes to ensure respect for fair trial rights will enable efficiency to be enhanced without fair criminal justice being undermined.