Back in the bad old days of the 1960s, plea bargaining was, of course, quite properly outlawed. If your client told you he was guilty then he either pled or went to another solicitor, by which time he would have learned to hold his tongue.
The more experienced defendant had his girlfriend or mother ring up: ‘I’m terribly worried about Bobby. You know he didn’t do it but what would happen if he pleaded? What would he get?’ And since the professional criminal generally only really cared about the sentence this was the signal to think along those lines.
Now things are on a formal basis, but then, back at the Bailey, it was a question of which judge you drew, who you instructed as counsel, and for that matter whether his clerk could get the case listed in a court where the judge was amenable to informal chats.
Solicitors, deemed untrustworthy, were not allowed in to the discussions which, I believe, often opened with a glass of sherry before getting down to the business of the moment. Counsel had, in their turn, to put things obliquely. ‘Smith still maintains his innocence but the evidence is pretty strong. What if…’ And the replies were often similarly couched. ‘I could see him out by lunchtime.’
But because nothing was said that was hard and fast, wires got crossed and sometimes it went spectacularly wrong. ‘Out by lunchtime’ might have meant lunchtime in three years – and off went the case to the Court of Appeal, generally with no success.
One case I had at the Bailey was a man accused of stabbing another while he was in bed. The evidence wasn’t all that strong
and the client who had, as they say, more form than Red Rum/Shergar/Arkle, was convinced that it was not he who had nearly killed the victim.
I don’t even know how counsel, who was clearly not as convinced of his innocence as the client was, came to talk to the judge but, when he came out, we went down to see the man. Counsel said: ‘We know you are committed to fight this case but I have to tell you that the judge says that if you plead he will give you a maximum of four years.’
Any lingering thoughts of innocence were dispelled: ‘Get up there quick and tell him “yes” before the old geezer changes his mind.’
James Morton is a writer and former criminal defence solicitor