It's A Bargain

Plea bargaining, which is routine in the USA, exists in a shadowy half-world in the English jurisdiction. It goes on, of course, but nobody likes to admit to it. At its lowest, if someone is facing half a dozen charges (easy enough in the motoring court) the prosecutor might take a view on the lesser ones and drop them in return for a quick plea to the serious one. In cases of assault, where the facts can cover a wide spectrum, the commonest deal is between Actual Bodily Harm and Common Assault. ABH is either-way, so there is an option of a Crown Court trial. If the defendant digs his heels in on the ABH and threatens to opt for jury trial, but his brief hints that a plea might be forthcoming on Common Assault the prosecutor might well go down that route. It's rough justice in a way, but it's quick and it's cheap. Common Assault is summary-only and the maximum sentence is £5000 fine, and/or six months' prison, with the power to award compensation to the victim. A case that might have lingered for months at the Crown Court, with Counsel briefed and a jury empanelled, with a Circuit Judge presiding can be dealt with on the day, with a quick pre-sentence report and the job is done. The lower court's power of sentence for ABH and Common Assault are the same.

We sometimes see an Agreed Basis of Plea, which is little understood outside of the courts. In a case of, say, common assault, the actual assault can be anything from spitting, to grabbing someone's arm, to a punch, or a kick, or worse. It may or may not have been repeated. If the defendant agrees that he committed an assault but disputes the seriousness, there are two options. One is a Newton Hearing, which is a mini-trial, conducted in the same way as a full trial, to decide on a fact of the case that does not amount to a defence but goes to establish seriousness. Mr. Fangio accepts that he was driving at more than 70 mph, but denies that the speed was 115. So the court hears evidence and makes up its mind. Another option is the Agreed Basis of Plea where the defence admit the offence but only on their version of what happened. If the Crown accept this, the court has to sentence on that basis. This can bring the sentence way down. A few weeks ago we heard the prosecution summary of what sounded like a very nasty incident. Had we sentenced on those facts the young man concerned would not have been going home that afternoon, nor for some months to come. In the event we gave him a community penalty of unpaid work, because the agreed plea took the matter well down the scale.

Last year my colleagues dealt with a Very Famous Person who had misbehaved, fuelled by drink and by arrogance. He faced three charges, one either-way that could have led to a few months in prison, one common assault, and one public order offence, known in the trade as a section 5. The gallery was packed with press, with camera crews outside on the pavement. By the time that pleas were entered the either-way charge had been dropped, the assault was agreed on the basis of one open-handed slap, and the Section 5 amounted to a lot of bad language. My colleagues sentenced by the book and gave him a period of unpaid work. The next day the headlines were screaming about dozy out-of-touch magistrates and the lack of deterrence. Most didn't mention the reduction in charges, and none connected that with the sentence. We received a couple of dozen letters at the court, mostly abusive, some just pained at our failure to do our job.

I suspect that the CPS' decision to lower the charges was taken partly to avoid a media circus at the Crown Court (where the case could have taken two or three days) and partly to get the file closed as quickly as possible. That's understandable, I suppose, but the end result was unfairly to decrease public confidence in the system - whether you blame that on the CPS or on sloppy and tendentious press coverage is up to you.