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A Barrister's Role in the Plea Decision

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A Barrister's Role in the Plea Decision A Barrister’s Role in the Plea Decision: An analysis of drivers affecting advice in the Crown Court By James Dominic Edward Barry Queen Mary, University of London Submitted for PhD I declare that the work presented in this thesis is my own …………………………………. Date: ……………………………. James D.E Barry 2 Abstract: This thesis explores the reasons behind barristers' advice to defendants in the Crown Court on plea, primarily through interviews with criminal law practitioners themselves. Beginning with a critical overview of the current research, the thesis argues that the views of criminal barristers are a neglected significant source of information in developing an understanding of why particular advice is given. The thesis, in the context of other research, analyses the data from interviews conducted with current practitioners on the London and the Midlands Circuits, and discusses the various drivers that act upon barristers in deciding what advice to give. Starting with the actual advice given and the advising styles adopted, the thesis explores why guilty pleas might be advised and plea bargains sought with prosecutors. The research goes on to examine the impact of various influences, including legal, ethical, cultural, regional and financial to produce an overview of what factors impact upon a barrister's advice. The thesis argues that the current view of the Bar sustained in much of the literature is insufficiently nuanced and outdated, and that the reasons behind the advice given to defendants on plea are extraordinarily varied, occasionally contradictory, and highly complex. The thesis concludes that the data from the interviews warrants a rethink of why particular advice is given and that discovering what drives barristers’ advice is critical to formulating law and government policy. 3 Table of Contents CHAPTER 1: INTRODUCTION .......................................................................... 9 CHAPTER 2: PLEADING GUILTY: HISTORICAL AND COMPARATIVE DEVELOPMENTS ............................................................................................ 13 1. Introduction ........................................................................................................................................... 13 2. The origins of plea bargaining in Anglo-American law ..................................................................... 14 3. Pleading guilty and admitting to offences in contemporary English criminal justice ..................... 15 a. Diversion ............................................................................................................................................ 16 i. Simple cautions .............................................................................................................................. 16 ii. Statutory cautions .......................................................................................................................... 17 iii. Penalty Notices for Disorder ........................................................................................................ 18 b. Guilty plea rates in England and Wales .............................................................................................. 19 4. The form of plea bargaining in English courts ................................................................................... 20 a. Bargaining through the discount ......................................................................................................... 21 i. Statutory regulation ........................................................................................................................ 22 ii. The Sentencing Guidelines Council .............................................................................................. 23 iii. Discounting outside the guidelines ............................................................................................... 24 b. The judicial indication: the development of the law from Turner to Goodyear ................................. 25 c. The discount in operation ................................................................................................................... 27 d. Commentary and research on the effect of the discount on defendants .............................................. 33 e. Charge bargaining ............................................................................................................................... 38 i. The magistrates’ court .................................................................................................................... 38 ii. The Crown Court ........................................................................................................................... 41 f. Fact bargaining .................................................................................................................................... 47 5. Pressure from defence barristers ......................................................................................................... 47 a. Guilty plea culture .............................................................................................................................. 49 b. Court communities ............................................................................................................................. 50 c. Financial incentives ............................................................................................................................ 51 d. Rethinking barrister incentives and culture ........................................................................................ 53 6. Gaps in the current literature .............................................................................................................. 55 7. Identifying the research question ......................................................................................................... 59 CHAPTER 3: THE EMPIRICAL BASIS FOR THE RESEARCH ...................... 60 1. Method summary .................................................................................................................................. 60 CHAPTER 4: THE ADVICE PROCESS ........................................................... 64 1. Current conceptions of the advice process .......................................................................................... 64 2. Constructing advice .............................................................................................................................. 67 a. Forming a view ................................................................................................................................... 67 4 b. Timing of advice ................................................................................................................................ 73 c. Bad character ...................................................................................................................................... 77 d. Plea and case management ................................................................................................................. 84 3. Tactical considerations relating to sentence ........................................................................................ 87 a. Using a trial to expose mitigation and the defendant’s character ....................................................... 88 b. The discount and sentencing .............................................................................................................. 90 i. Is the discount being properly applied? Evidence from the research. ............................................. 90 ii. How the discount is discussed with defendants ............................................................................. 93 iii. Does the discount place pressure on de facto innocent defendants? ............................................ 95 c. The Goodyear indication .................................................................................................................. 102 i. Application and use ...................................................................................................................... 103 ii. Whether Goodyear creates unfair pressures ................................................................................ 107 iii. Practical problems ...................................................................................................................... 108 iv. Ethical problems ......................................................................................................................... 111 4. Advising in strong terms- two different approaches ........................................................................ 115 a. The persuasive approach ................................................................................................................... 118 b. The facilitative approach .................................................................................................................. 123 5. Conclusion ............................................................................................................................................ 125 CHAPTER 5: PLEA BARGAINING ................................................................ 128 1. The extent of bargaining in English Courts ...................................................................................... 128 2. Charge and fact bargaining ...............................................................................................................
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