Plea-bargaining broadly refers to a process which results in an accused agreeing to plead guilty to an offence in return for a lighter sentence. Insofar as it involves private negotiations and agreement among the prosecution, defence and the judge, it is entirely improper and unlawful. Where it arises at all, it is likely to take the form of the judge giving an indication of the sentence he or she considers might be appropriate on the basis of his or her understanding of the facts at that stage in the proceedings. This might occur in open court or in private discussion with counsel in the judge’s chambers. In the latter, defence counsel could use any such indication as a basis for advising the accused on the respective merits of pleading guilty or not guilty, so long as he or she does not reveal the judge as the source. Either way, since there is no bargaining element involved, it is arguably a misnomer to refer to it as plea-bargaining.
Plea-bargaining offers obvious resource and bureaucratic advantages in the management of criminal prosecutions. Even in its diluted version, however, these may have a serious adverse effect on justice and the integrity of the criminal trial (see below). The appellate courts in Ireland and Britain have struggled to strike an appropriate balance between these tensions. In a decision handed down less than two weeks ago in E.R. v DPP  IESC 86, the Irish Supreme Court shed further light on the Irish approach. That case concerned the effects of the trial judge intervening during the course of the trial to indicate that a suspended, or other lenient, sentence might be imposed should the accused plead guilty to certain counts on the indictment.
Facts of the case
The two accused, a mother and her partner, were re-tried before a judge and jury with serious assaults on the mother’s four-year old child. Their previous trial had ended in the failure of the jury to agree a verdict. In the course of the re-trial, a video of what the child victim told the investigating authorities about what had happened to him was shown to the jury. It was expected that this would be followed by the child being made available for cross-examination by counsel for each of the two accused.
Before the cross-examinations commenced, the trial judge (in the absence of the jury) intimated that if the two accused were to change their plea to guilty to at least one of the counts, it could result in the imposition of a non-custodial sentence. The judge also intimated that, in the absence of a guilty plea, it would be difficult to see how they could avoid a custodial sentence if they were convicted by the jury. The intervention was made by the trial judge on his own initiative.
Presumably, the judge’s motivation was to save the child from the further trauma of cross-examination on behalf of his mother and her partner, if that could reasonably be avoided without injustice. Nevertheless, it could be interpreted as introducing an element of plea-bargaining (at least in its diluted form). It should also be noted, however, that prosecution counsel made it clear that an application to increase the length of any sentence imposed would remain an option for the prosecution.
Having considered the matter overnight, both accused changed their pleas to guilty. The mother’s partner was subsequently sentenced to imprisonment for ten years, with seven years suspended. Before she was sentenced, the mother sought leave from the trial judge to vacate her guilty plea (change her plea back to not guilty). The only reason given for her earlier guilty plea was that she did not want to go to prison, and she felt at the time that she was “stuck between a rock and a hard place” because of the indication given by the judge on the sentence. The judge refused to allow her to change her plea, and she was subsequently sentenced to imprisonment for eight years, with the whole term suspended.
The mother sought a judicial review of the legality of the judge’s refusal to allow her to change her plea to not guilty. That, in itself, was an unusual step to take (or permit) during the currency of a criminal trial. The normal course would be to allow the trial to take its course and then proceed by way appeal against the verdict (assuming that it was a guilty verdict). She succeeded initially in the High Court which held that the judge’s intervention, however well-intentioned, had the unlawful effect of applying pressure on her to plead guilty.
The High Court’s decision was overturned by the Court of Appeal on the entirely separate ground that the accused should not have been allowed to seek a judicial review during the currency of the criminal trial. That decision was upheld by the Supreme Court. The net effect was that the ‘plea-bargaining’ issue lost its substantive effect. Nevertheless, in his judgment in the Supreme Court, Charleton J. made it clear that ‘plea-bargaining’, even in the form that it took in this case, has no place in the Irish criminal trial.
Plea-bargaining has some obvious bureaucratic and resource advantages. Persuading a guilty person to plead guilty avoids the uncertainty attaching to the outcome of a contested criminal trial. It also makes substantial cost savings and speeds up the processing of other criminal trials to the benefit of victims, witnesses, the criminal justice agencies and society as a whole. In cases such as E.R., it also has the immeasurable benefit of sparing vulnerable victims and witnesses the ordeal of having to give evidence and to submit to cross-examination on that evidence. There is always the risk that they will otherwise not be able to cope with the stress involved, with the result that the trial may collapse and a guilty person walk free.
The drawbacks to plea-bargaining are surely weightier. One of the basic principles of justice in a liberal democracy based on the rule of law is that criminal trials must be conducted in public. The integrity of the criminal process, and public confidence in it, depends heavily on that. Accordingly, when an accused pleads not guilty, the evidence against him should be presented and tested in open court, and (where applicable) the sentencing process should be conducted in open court. The accused must not be exposed to pressures aimed at extorting an involuntary guilty plea. Equally, there should be no room for secret deals which harbour suspicions of promoting professional, bureaucratic and/or privileged interests to the detriment of the individual victim and society. In this context, appearance and substance are virtually indistinguishable.
In an article in The Bar Review (2000), Charleton and McDermott identified further objections closely linked to the private environment in which the sentence discussion occurs. These include: the risk of inadequate information being given to the judge, inhibition on the judge imposing a more severe sentence, the “incorrect” atmosphere of chambers in contrast to that in open court, misunderstanding among the parties and possible pressure on the accused.
The risks associated with plea-bargaining have long been recognised. In Turner (1970), one of the most frequently cited English cases on the subject, Lord Parker C.J. made it abundantly clear that a trial judge should never indicate that he or she would impose one sentence on a plea of guilty and a more severe sentence on a plea of not guilty. The most that the judge can do in this context is tell counsel the particular type of sentence he or she would impose, having read the case materials. This must not be related to a plea of guilty or not guilty.
Significantly, the Court in Turner also provided guidelines on when it might be appropriate for counsel to talk to the judge privately in chambers to get an indication as to the likely sentence (the Turner Guidelines). These were further developed and clarified by the Court of Appeal for England and Wales in Goodyear (2005). They are also the subject of guidance issued by the Attorney General’s Office.
In Heeney (2001), the Irish Supreme Court made it clear that plea-bargaining, in the sense of a private arrangement whereby a particular level of sentence will be imposed in return for a plea of guilty, has no place in Irish law. Indeed, it would be contrary to Article 34.1 of the Irish Constitution which states that justice, in general, should be administered in public. The Court also said, however, that a trial judge could give a provisional indication as to the difference in level of sentence that might be secured in return for a plea of guilty. This would be permissible so long as there was no element of bargain involved, and it was understood that the sentence might change depending on the evidence heard in open court. It is also worth noting that the DPP issued an instruction to prosecution counsel in 1998 to desist from the practice of accompanying defence counsel to the judge’s chambers for the purpose of expressing a view, if asked by the judge, on a sentence that might be imposed.
Even where the accused is given an indication that changing his plea will secure a lighter sentence, he must take account of the possibility that the DPP will make an application to the Court of Appeal challenging the leniency of the sentence imposed. There have been cases in which the DPP has taken such applications successfully even though the sentence was handed down on a guilty plea entered consequent on private discussion involving prosecution and defence counsel and the judge. In Heeney, the Supreme Court said that the Court of Appeal should take cognisance of any such discussion when considering whether the sentence was too lenient, although it was not precluded from increasing the sentence.
In E.R. Charleton J., in the Supreme Court, seemed to take a more absolutist stand against anything that hinted of plea-bargaining. The case is unusual in that it does not involve an attempt by defence counsel to seek an indication of the sentence that might be imposed in the event of a change of plea. Nor does it involve any discussion around sentence and plea in the judge’s chambers. Instead it was the judge himself who raised the matter and he did so in open court (in the absence of the jury).
Charleton J. acknowledged that the trial judge was likely motivated by considerations of humanity for the child victim. Nevertheless, he made it clear that the judge’s intervention was inappropriate. There was no room for the judge to discuss the issue of sentence with the parties “[w]hether in open court or, worse still, in the secrecy of chambers”. In Ireland, such discussions have “no place in the constitutional order of a trial in due course of law.” Charleton J.’s reasoning on this is largely reflected in the drawbacks to plea-bargaining outlined above. Moreover, he was influenced by the fact that the trial judge in this case could, and should, have taken steps to protect the child by exercising control over the tone and length of cross-examination, while at the same time ensuring the accused’s right to test the child’s evidence.
Effect on the guilty plea
In light of what the Supreme Court had to say in E.R. about the trial judge’s error in raising the issue of sentence, it might seem reasonable to expect that the Court would go on to quash the accused’s guilty plea. Nevertheless, the Court did not do that. It upheld the trial judge’s refusal to allow the accused to change her plea to not guilty.
The Supreme Court acknowledged that the trial judge has a discretion to allow the accused change her plea from guilty to not guilty in the course of the trial. It also emphasised, however, that he or she should not intervene to do so unless quite exceptional circumstances have arisen in the case.
Permitting a change of plea from guilty to not guilty in the course of the trial would have significant ramifications. The Supreme Court pointed out that the unitary nature of the trial, which is a core feature of the common law trial process, would be disrupted. Witnesses may already have been sent away, and the victim’s sense of closure following the guilty plea would be dashed. Scarce court time would be wasted, with knock on implications for the scheduling of pending trials.
More fundamentally, the change of plea calls into question whether the initial guilty plea was an informed and voluntary decision. A guilty plea is a statement that the accused committed the offence and accepts responsibility for it. Subsequently changing the plea to not guilty would require the accused to show that an impermissible degree of pressure had been exerted on her falsely to plead guilty in the first instance. On the facts of this case, that appeared to be lacking.
The Supreme Court considered the trial judge’s intervention on the sentencing issue as the provision of information, rather than an inducement to plead guilty. In any event, it was made clear in the presence of the accused that the prosecution reserved the right to apply to the Court of Appeal to increase the sentence if it was considered too lenient. Accordingly, she knew that the trial judge did not have the last say on sentence, as it could be changed by the Court of Appeal.
The accused did not present any other evidence that could have persuaded the trial judge to exercise his discretion in her favour. Strictly, her legal team should have withdrawn from the case when she changed her plea. That would have allowed her to waive legal professional privilege, thereby making evidence of her solicitor and counsel on the matter available to her. There was no indication, however, that that would have added anything to her case.
Taking all of these matters into account, the Supreme Court concluded that there was insufficient evidence to warrant exercise of the trial judge’s discretion in favour of allowing the accused to change her plea from guilty to not guilty. Accordingly, there was no basis for disturbing the judge’s decision on the matter.
Charleton J.’s observations in the Supreme Court on the ‘plea-bargaining’ aspects of E.R. are, strictly speaking, not legally binding (as the case was disposed of on the basis that judicial review was not a remedy lawfully available to an accused during the currency of a criminal trial). Nevertheless, it can be expected that they will be relied on as authority for the proposition that ‘plea-bargaining’, even in the diluted form that it took in this case, has no place in Irish criminal law. Given the damage that plea-bargaining can inflict on justice and the integrity of the criminal process, the decision is welcome. The refusal to allow the accused to change her plea from guilty to not guilty is more questionable.
While it is easy to appreciate the need for limits on such change of plea in the course of a trial, it is at least arguable that the bar was set too high on the facts of this case. For the outside observer, there is surely a sense that the accused would not have pleaded guilty had it not been for the trial judge’s intervention holding out the prospect of a non-custodial sentence in the event of a change of plea to guilty. The mere fact that there was no guarantee of a non-custodial sentence, or that it might not survive possible challenge, does not detract from the appearance that it was sufficient to extract the guilty plea. Accordingly, it is respectfully submitted, the integrity of the trial process would have been better served, in the particular circumstances of this case, if the accused had been allowed to change her plea again from guilty to not guilty.
 He is the same Charleton J. who handed down the leading judgment in the Supreme Court in the E.R. case.
 Paul Anthony McDermott was a former academic colleague, a leading Irish criminal practitioner and joint author (with Peter Charleton and Marguerite Bolger) of the seminal Irish text Criminal Law (1999). Tragically, he died a few weeks ago after a short illness at the age of 47 years. His passing is an inconsolable sadness for his young family and an immense loss to the Irish legal profession.
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