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This essay is going to discuss and look at the main significant problems with plea bargaining

Before discussing, it is important to understand what plea bargaining is. Plea bargaining originated in the 19th Century and plays a prominent and major role in our criminal justice system today. Plea bargaining is a settlement or an agreement that is negotiated between the two parties of the defendant and the prosecutor in a criminal case. It is an option for the defendant to plead guilty or no contest to his or her alleged charges which they face. Once they pleaded guilty or no contest, the cost of a trial is spared. In most cases in exchange for the defendant’s plea of guilty, the prosecution would usually compromise and agree to let the defendant plea for lower or less serious charges or reduced length of the defendant’s sentence. Although plea bargaining is a very controversial subject and the significant problems of its practice that causes a lot of concern, the practice of plea bargaining is very widespread and used a lot in a lot of countries’ criminal justice system (codified and uncodified systems) in the modern world that we live in today.

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Plea bargaining has been under heavy criticisms over the year for its significant problems. It is argued that the application of plea-bargaining principles and guidelines contradict an adversarial court system’s core value. An adversarial system is a legal procedure used by the United Kingdom (countries that use common law) where the prosecution and the defendant’s lawyer case is put before a judge that is fair and impartial. The state prosecution team will then need to persuade a panel of juries that the defendant is guilty. The jury will then determine whether the defendant is guilty or innocent based on the admissible and reliable facts and evidence presented in front of them by the case. The judge will then decide by making a judgement at the conclusion of the case. It is argued that the practice of plea bargaining is inconsistent and gives rise to tensions with the basic principles of an adversary court system. When a guilty plea is accepted by the court given that it was a purely voluntary act by the defendant, the prosecutor is relieved from “the burden of proof”. The focus is now on the court to decide on the sentence of the defendant following the guilty plea. It is argued that the courts should reduce the length of the sentence as a guilty plea implies that the defendant has shown signs of remorse and repentance and is willing to accept the legal sanctions for the consequences for his/her actions. An opposite side to this argument is the decision on the sentence should be based on the actions of the offender.

Putting the practice of plea bargaining on a more formal footing means that establishing ways to allow it to develop by giving it a more recognised form or structure. The courts over the years have tried to use different legislation to provide a clearer guideline and structure to help

The courts have established the “Turner Rules”1 from the case “R v Turner”2 as a guideline aiding judges, prosecution and lawyers with different situations of plea bargaining in cases.

As the practice of plea bargaining becomes more widespread and common, the courts have tried to put plea bargaining on a more formal footing by trying to regulate plea bargaining with a “sentence canvass” which was a private recorded discussion involving the jury prior to the trial proposed and introduced by the Royal commission3 in 1993.  The courts later set out another set of guidelines after the “sentence canvass” raised a lot of controversial issues and the government was against the proposition. Section 48 (1) of the Criminal Justice and Public Order Act 19944 established a set of guidelines in regards on deciding on a reduced sentence with plea bargaining. The courts will consider at what stage the defendant expressed his intention of a guilty plea. The courts will also take into account of what situation the guilty plea was indicated under and whether the guilty plea was a genuine volunteer act from the defendant.

However due to even more controversy, a set of guidelines under the Acceptance of Pleas 5was introduced by the attorney general in the last month of the twentieth century. The guidelines including a code for prosecutors to take into account in regards to what pleas can be accepted and allowing the court of appeal to increase the length of a sentence if the reduced sentence decided by the crown court is unreasonably lenient.


Some may argue that plea bargaining should be abolished and that it has no place in the criminal justice system. The general public may be prone to develop a view that they can receive a bargain of reduced sentence by a plea of guilty. Information obtained in research surveys asking defendants about reasoning to enter guilty plea6 showed that only a very small minority of defendants voluntarily plead guilty as some defendants plead guilty after knowing that regardless of an agreement, the length of their sentence would be reduced. Some defendants enter into a guilty plea either a bargain agreement offered to the defendant or the defendant was experiencing undue pressure from their own lawyer. In regards of putting plea bargaining on a more formal footing, the law has set up rules and guidelines on how reduction of sentence is given after a guilty plea. As it is important that the public do not get the impression that a reduced sentence is a “reward” in exchange for a guilty plea and that they can drive a bargain with the court.


We now look at the benefits of plea bargaining and discuss how we can put it on a more formal footing.  With the continuous rise in crimes, the courts and both the prosecution and the defence search for different options and methods to allow them to handle the increasing case load those piles up and causes court congestions. It is hard to estimate and know beforehand the amount of time and resources a case will consume with trials sometimes consume a lot of resources and a great amount of time. On the other hand, Plea bargaining help save a lot time and resources used and allow parties to use manages their cost and time. This helps courts to save a lot of time on cases and reduce court congestion. Prosecutors also benefit from plea bargaining as it helps lessen their case load enabling them to handle and devote more time to cases. However, research show that there is very little and weak proof to claims that plea bargaining save time and resources. A survey was done7 with crown court judges being asked about time and resources wasted due to last minute guilty pleas by the defendant in a trial. Most of the judges (81 percent) said that no judicial time was wasted. In conclusion of the survey conducted the time and resources claimed to be wasted are actually a lot less in reality than the claim itself. It is also argued that if the criminal justice system relies on plea bargaining for a long time, it actually add to the amount of time, resources and money wasted and becomes a burden instead of saving court administrative fees and public resources and expenses.  

The application of plea bargaining has an important effect on the independent role of the judge and the way judges reputations are viewed in an adversarial system. The practice of plea bargaining carries a risk of ruining the independent judgment and role of a judge and the judge’s reputation of impartiality during the process of a case held on trial.  

It is argued that the judge’s decision of the defendant might be affected by plea bargaining as the courts might be focused on getting through a case quicker to minimise time and resources and save court administrative fees. As the priority and objective of the judges and courts should be to protect the truth and to give everyone a fair trial and no one is guilty until proven so. Although this factor may be one of the significant problems with plea bargaining, it would be unpractical and undesirable to suggest the abolition of plea bargaining. The judges and the courts could put plea bargaining on a more formal footing by being more focused on giving everyone a fair trial by deciding the correct legal outcome and not be affected by the factor of saving time and court administrative fees.

It is also argued that the practice of plea bargaining can indirectly cause excessive pressure upon the defendant. An accused defendant might be pressurised into admitting guilt or no contest which takes away their basic statutory right to be given a fair trial and that he or she is “innocent until proven otherwise”.

Plea bargaining give rise to a lot of challenges and key public policy questions to any criminal justice system that chooses to adopt the practice of plea bargaining. A criminal justice system should be always looking for ways to improve and develop. The approach and account of how our criminal justice systems is shown through the dilemmas and problems that arise in plea bargaining. The common law adapts a pragmatic approach in terms of amending and developing legislation. Rules and guidelines are amended and adapted as they go along as new issues and circumstances continue to emerge. New rules and guidelines can be established for new situations as long as the courts have discussed and approved the new amendments or rules.