Criminal Judges on Trial: State-Induced Guilty Pleas by Mike McConville and Luke Marsh

July 1, 2014

Law - Academic

handcuffed

Giving the criminally accused reduced sentences in return for a guilty plea is officially portrayed as  a practical necessity for the administration of criminal courts. No one likes the idea of criminals ‘getting away with it’. Repeatedly, law and order politicians complain that offenders are not receiving their just desserts.  Yet the striking of deals with offenders (‘plea bargaining’) is now  portrayed by judges and politicians alike as an imperative because, it is said, the criminal justice system  could not cope with a high proportion of defendants  asserting their ‘right’ to trial.

Increasingly, victims too, have been pushed into the frame on the basis, it is asserted, that, an early guilty plea saves them the stress and ordeal of giving evidence in court. With the recent introduction of Early Guilty Plea schemes and rise of Plea-Only Advocates, the State’s reliance on ‘arm-twisting’ discounts appears set in stone.

Criminal Judges upturns this stone, revealing underneath a carefully-constructed judicial myth wholly at variance with a disturbing reality marked by systemic police corruption, endemic prosecutorial incompetence, emasculated defence services, and juries side-lined. In its place, constructed in secret by judges, is a non-trial process which rewards the guilty, whether remorseful or not, and cynically betrays the interests of victims and innocent defendants.

Actually, for at least the last fifty years the skeleton of plea bargaining has lain beneath the robes of justice concealed by judicial evasions, deceit and double-dealing. Indeed, the Sentencing Council (a committee stuffed with judges) today claims that “Reductions for guilty pleas were introduced by Parliament – judges and magistrates only decide the amount of time off to give the offender” a statement that has no basis in fact.

For their part, judges have failed to provide plausible justifications for this unworthy device. Their best effort – the claim that it ‘saves victims stress of giving evidence’ – does not stand scrutiny: victims are not protected where cases are given an out-of-court disposal as part of ‘case-shedding’ or where serious crimes are reduced to lesser crimes or where sentences are reduced below that which is deserved or where innocent defendants are persuaded to plead guilty (as judges acknowledge happens) in the face of a threat of substantially increased punishment.

For their part, defence barristers have been unable to withstand closet judicial arm-twisting. For more than four decades, barristers were summoned to judges’ chambers to be pressured in secret to accept ‘deals’ or risk heavy punishment for defendants and possible adverse effects upon their own professional aspirations. More recently, the profession has been further downgraded by cuts to legal aid leading to concerns  over the ‘talent pipeline’ for future QCs and judges. Instead of being an independent force for justice, barristers have been coerced by new judicial rules to become near-handmaidens of the prosecution.

Referring to the well-known American criminal system of plea bargaining, Lenny Bruce once said that in the Halls of Justice, justice is in the halls. English judges no longer promise justice even in the halls. Today, the guilty get less than they deserve; the innocent get more than they deserve; no one gets what they deserve. Perhaps, on closer reflection of the ‘work’ criminal judges do in this country, the public can start to see how the system of ‘deals’ and ‘bargains’ is better understood not as the courts dispensing justice but as the courts dispensing with justice.

Criminal Judges

Criminal Judges by Mike McConville and Luke Marsh

Mike McConville is Professor Emeritus and was Founding Dean of Law at The Chinese University of Hong Kong and the author of numerous books including ‘Criminal Justice in Crisis’ and ‘Criminal Justice in China’. He offers pro bono legal assistance to various community groups.

Luke Marsh is Assistant Professor at the Chinese University of Hong Kong. He is also a qualified barrister (England and Wales) having previously practised at a leading criminal set of chambers in London. He is currently the General Editor of Archbold News (Hong Kong).  

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