A bird in the hand...

James Morton looks at plea options for defendants following the ban of sentence bargaining and asks why such negotiations have not been legitimised

The suggestion by the new head of the Serious Fraud Office, Robert Wardle, that fraudsters should be able to bargain and know their sentence before they commit themselves to a plea is nothing new.

Mr Wardle would like to move nearer towards the US system of a negotiated sentence, something its critics think of as a rug bazaar.

In this marketplace the defence and prosecution effectively negotiate a mutually agreeable sentence which is then approved, or not, by the judge.

But is our current form of negotiated justice really any better, and indeed why stop at fraudsters?

Years ago, before plea - or more correctly sentence - bargaining was outlawed the business was conducted on a wink and a nod.

The bar was smaller and judges had their favourites with whom they were happy to give an informal indication of what they had in mind.

Professional criminals knew the rules as well.

They would not admit their guilt to the solicitor, but mother or a girlfriend would ring up with the innocent query: 'Bill's not guilty, you know that Mr M.

But what's a judge going to give him if he pleads guilty?' The truth is that many a defendant, as Mr Wardle says, only wants to know what his sentence is going to be.

Generally, they are pragmatic.

If the sentence is within their expected range they will take it and turn their attention to early release.

I recall one defendant who had protested his innocence in a serious stabbing, on being told that if he pleaded guilty the judge would give him four years, saying: 'Get up there before the old boy changes his mind'.

The difficulty came when the old boy did change his mind or wires were crossed.

Judges tended to make Sphinx-like comments which could be open to misinterpretation.

'If he pleads he'll see daylight by midday' was one of them.

The defendant thought it meant midday that day, the judge had in mind midday in 12 months' time.

So the ban came.

Judges could give an indication of whether there was to be a custodial sentence but that was all.

Sentence bargaining still went on undercover and there were the same misinterpretations.

The general concept was that there must be no pressure on an innocent party to plead guilty, something which could, it was recognised, conceivably happen, albeit rarely.

It is rightly suggested that the poor are the ones who might not get competent lawyers but, of course, that cannot happen here because, as we all know, every member of the bar is as good as the next.

As for solicitors, they are now franchised - so once again there is absolute protection.

Gradually, however, the authorities realised that if they wanted to have the lists unclogged there had to be some form of incentive in a defendant not taking his chance.

After all, if there was no increase in a sentence for pleading not guilty, and no decrease for a guilty plea, why not fight it out? In came discounts for early pleas.

The quicker the defendant admitted his guilt, the more time came off the sentence - roughly one-third.

What is that if it is not a sentence bargain?

The answer is to legitimise the whole thing.

Have the sentence bargaining hearing in the presence of the defendant.

The judge can give a sentence range of, say, three to five years and the defendant must make up his mind.

It is the trend towards trial by judge alone - as opposed to sentence-bargaining - that is far more dangerous for a number of reasons.

It is always said that the best forum for an innocent defendant is a qualified lawyer but over the years, as experience in London magistrates' courts has shown, practice differs from theory.

We are always told that now there is improved training and selection of judges, the bigots have been eliminated.

Again, experience indicates that the cleansing is not yet complete.

One danger of trial by judge alone at the election of the defendant is that juries left with the remaining cases will start asking themselves 'Why has he chosen us? Is it because he doesn't have a good case?' The second and more worrying thing is whether judges sitting alone can be relied on to deal properly with police misconduct.

One of the reasons for the mess in which the criminal justice system finds itself at present stems from the reluctance over the years of judges to recognise and act on bad behaviour by the police.

As the judiciary moves ever closer to a career pattern, will judges who seek preferment be willing to take unfavourable decisions and act in cases where the police have misbehaved? Obviously, they will no longer be able to let the jury act as a backstop and sort it out.

Already there has been a case where prosecutors have tried to have a judge changed because of previous unfavourable rulings.

A few years down the judge-alone line will this not happen on a regular basis? Innocence may once again be sacrificed to expediency.

James Morton is a former criminal law specialist solicitor and now a freelance journalist