Pleas Please Me
| Author | James Morton |
| DOI | 10.1350/jcla.2005.69.4.277 |
| Published date | 01 August 2005 |
| Date | 01 August 2005 |
| Subject Matter | Opinion |
OPINION
Pleas Please Me
James Morton
So at last plea bargaining has been legitimised. R v Turner [1970] 2 QB
321, that bane for defendants, has been overturned and in its place
Goodyear is king (R v Goodyear [2005] EWCA Crim 888, The Times (21
April 2005)). It has been a long and rocky road and there are still a few
pitfalls to be encountered but, for the present, defendants should know
where they stand when it comes to bargaining for a sentence. After all,
as experienced criminal practitioners will tell you, that is the only thing
about which their clients really care.
Years ago before plea or more correctly sentence bargaining was
outlawed the whole thing was conducted on a wink and a nod. The Bar
was smaller and judges had their favourites with whom they were
happy to have a chat and to give an informal indication of what they had
in mind. When there were only a few courts sitting at the Old Bailey or,
say, London Sessions, it was easy enough to ensure that the barrister
briefed was not at loggerheads with the probable judge. Professional
criminals knew the rules as well. They would not admit their guilt to the
solicitor, but mother or a girl friend would ring up, ‘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 defendants only want to know what
their 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 working towards an early release.
I recall one defendant who had protested his innocence in a serious
stabbing, being told that, if he pleaded, the judge would give him four
years. He replied, ‘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 midday in 12 months’ time. In the case of Turner, the defendant
was seriously displeased on how things had turned out and his appeal
led to the ban. From 1970 onwards, judges could give an indication of
whether there was to be a custodial sentence, but that was all. The
wheels of justice ground a little slower. Of course, sentence bargaining
still went on behind the scenes and there were the same
misinterpretations.
The general concept was that there must be no pressure on an
innocent man 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 we all know that
every member of the Bar, if no solicitor-advocate, is as good as the
next.
277
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