Constrained Waiver of Trial Rights? Incentives to Plead Guilty and the Right to a Fair Trial
| Date | 01 September 2019 |
| Author | Rebecca K. Helm |
| Published date | 01 September 2019 |
| DOI | http://doi.org/10.1111/jols.12169 |
JOURNAL OF LAW AND SOCIETY
VOLUME 46, NUMBER 3, SEPTEMBER 2019
ISSN: 0263-323X, pp. 423±47
Constrained Waiver of Trial Rights? Incentives to Plead
Guilty and the Right to a Fair Trial
Rebecca K. Helm*
This article develops an interpretative framework to examine when
incentives to plead guilty should be found to constrain defendant choice
to waive fair trial rights under the European Convention on Human
Rights. This framework is informed by existing jurisprudence,
specifically the judgments of the European Court of Human Rights in
Natsvlishvili and Togonidze v. Georgia and Deweer v. Belgium, and
socio-legal literature. According to the framework, an incentive to plead
guilty should be found to violate fair trial rights where it makes it
unreasonable to expect defendants to exercise their right to a full trial, is
independent of the projected outcome at trial, and causes the defendant
to plead guilty. An empirical analysis of guilty-plea practice in England
and Wales informed by this new framework identifies problematic
incentives and suggests such incentives may disproportionately
influence vulnerable defendants.
INTRODUCTION
Granting defendants in the criminal justice system a fair trial is central to the
rule of law, is part of the self-proclaimed common heritage of the parties to
the European Convention on Human Rights (ECHR),
1
and is protected by
Article 6 of the ECHR. However, in Europe, and across the world, the full
trial is starting to disappear as defendants increasingly agree to waive trial
423
*University of Exeter School of Law, Amory Building, Rennes Drive, Exeter
EX4 4RJ, England
R.K.helm@exeter.ac.uk
I am grateful to Anne Barlow, Stephen Skinner, Hitoshi Nasu, Ana Beduschi, Christine
Bicknell, Mathilde Pavis, Richard Nobles, and the anonymous article reviewers for their
comments on previous drafts of this article. The full research data supporting this
publication are available on request from the author.
1 B. Rainey et al., Jacobs, White, and Ovey: The European Convention on Human
Rights (2017, 7th edn.) 274.
This is an open access article under the terms of the Creative Commons AttributionLicense, which permits use, distribution
and reproduction in any medium, provided the original work is properly cited.
ß2019 The Authors. Journal of Law and Society published by JohnWiley & Sons Ltd on behalf of Cardiff University (CU)
rights, typically by pleading guilty.
2
For example, around 87.8 per cent of
cases in Georgia, 85 per cent of cases in Scotland, 64 per cent of cases in
Estonia, and 64 per cent of cases in Russia are resolved through trial waiver
systems rather than through trial.
3
In these systems, defendants are typically
incentivized to plead guilty, for example, through the offer of a reduced
sentence or charge when pleading guilty compared to the sentence or charge
that is likely to be received if convicted at trial. When defendants do plead
guilty they waive important trial rights contained in Article 6 of the ECHR
including the right to a public hearing, the right to provide evidence, and the
presumption of innocence, in exchange for receiving the incentive offered.
This practice of offering incentives to encourage waiver of trial rights raises
important philosophical questions, largely related to the protection of the
rights of criminal defendants.
4
While the ECHR does not prevent incentives being offered to encourage
guilty pleas, case law does demonstrate both that guilty pleas amount to a
waiver of the fair trial rights
5
and that:
the waiver of a right guaranteed by the Convention . .. must be established in
an unequivocal manner, and be given in full knowledge of the facts, that is to
say on the basis of informed consent . . . and without constraint . . .
6
The final requirement, that waivers be made without constraint, is particu-
larly important in the guilty plea context since literature suggests that
incentives to plead guilty have the potential to be coercive (and thus
constrain decisions to waive trial rights).
7
Where an incentive to plead guilty
is coercive, a defendant's choice to waive trial rights is tainted by constraint,
the defendant has not received the substance of a fair trial and, as stated by
Lord Steyn in Rv. Brown, the administration of justice has `entirely failed'.
8
The requirement that guilty pleas are made without constraint is particu-
larly important in the current system, where innocent, as well as guilty,
defendants appear to be pleading guilty. In England and Wales, of the 128
424
2 See Fair Trials, The Disappearing Trial, at
disappearing-trial-report>. For more information on the development of guilty-plea
systems across the world, see S. Thaman, World Plea Bargaining (2010); J. Turner,
Plea Bargaining Across Borders: Criminal Procedure (2009).
3 Fair Trials, id., p. 34.
4 R.L. Lippke, The Ethics of Plea Bargaining (2011).
5Navalnyy and Ofitserov v. Russia, Apps. 46632/13 and 18671/14, 23 February 2016,
para. 100.
6D.H. and Others v. the Czech Republic, App. no. 57325/00, 13 November 2007, para.
202. Note that it is also a requirement that the waiver not run counter to any important
public interest, see Hermi v. Italy, App. No. 18114/02, 18 October 2006, para. 73.
7 For example, L. Bachmaier, `The European Court of Human Rights on negotiated
justice and coercion' (2018) 26 European J. of Crime, Criminal Law and Criminal
Justice 236; H.M. Caldwell, `Coercive plea bargaining: The unrecognized scourge of
the justice system' (2011) 61 Catholic University Law Rev. 63.
8Rv. Brown [2003] 1 A.C. 681, 708.
ß2019 The Author. Journal of Law and Society published by John Wiley & Sons Ltd on behalf of Cardiff University (CU)
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