iii. Tool in the fight against complex crime iv. Accurate and individualised charging and sentencing 68. Another reason commonly put forward as a justification for the introduction of trial waiver systems is to aid in the effective detection and prosecution of complex crime. It was the view of some survey respondents that trial waiver systems, usually those taking the form of cooperation agreements or crown witness systems, were necessary in order to build cases in prosecutions for which little evidence was available to investigators without the assistance of insider witnesses. The kinds of investigations usually cited were financial crime, environmental crime, corruption, and drug trafficking. 71. Though it was not specifically mentioned by survey respondents, it has been suggested that trial waivers are seen as a method of arriving at more accurate charges through direct communication between the parties that does not use court time and resources. Related to this is the ability of some courts to ratify creative, individualised and problem-solving sentences struck between the parties; for example, crafting sentences that do not trigger particular collateral consequences or that permit defendants to maintain employment, or may be used in the context of “problem solving courts” with special procedures for drug users or defendants with mental illness.87 However, individualised sentencing can also lead to inconsistent, potentially arbitrary, and at times, discriminatory outcomes.88 69. The use of trial waivers (known as “delação premiada”) in relation to cooperating witnesses in the Lavo Jato/Petrobras prosecution in Brazil is a high-profile example of this practice, which has been subject to some public criticism. The media reported that a group of Brazilian public defenders had accused investigators in the case of using arrests “to get plea-bargain agreements like in an inquisition.”84 At the same time, the trial waivers came under criticism from other quarters for appearing to allow defendants to evade justice with substantial sentence reductions, and for the potentially unreliable nature of co-conspirators’ testimony.85 70. Some respondents to the surveys questioned whether trial waiver systems did indeed produce more or better quality prosecutions in these areas. On the contrary, trial waivers can sometimes cut short investigations by prematurely concluding proceedings. States are increasingly mounting high-profile anti-corruption prosecutions in order to tackle public perceptions of impunity of business and government actors. When these rely on trial waivers in order to secure convictions, the public often perceives further corruption in the justice system.86 The use of trial waiver systems to secure convictions in cases involving public corruption and government collusion is a double-edged sword for governments seeking to rebuild public faith in justice systems – trial waivers may be necessary to combat impunity and complex crime, but at the same time may undermine public faith in the system. v. Victims’ interests 72. Many jurisdictions employing trial waiver systems do so in order to spare victims the trauma of testifying, or being subjected to lengthy proceedings with uncertain conclusions. For example, England and Wales is due to introduce changes to its trial waiver system (in particular, the guidelines on reductions in sentence for a guilty plea) to incentivise defendants to plead guilty at the first appearance in court. The Sentencing Council has stated that one of the primary reasons for this change is so that “victims and witnesses can be reassured that the offender has accepted responsibility for the offence and that they will not have to worry about having to go to court. In addition, victims will also benefit from seeing a more consistent approach to determining sentence reductions”.89 Surveys from jurisdictions including the Cayman Islands, Croatia, New Zealand, Norway and South Africa similarly cited the desire to avoid victims being re-traumatised by trial as a motivating factor for introducing trial waiver systems. 84. Costa, P. C., “What if the ‘pre-plea bargain’ doesn’t turn into a real plea bargain?”, Folha de S. Paolo (Jul. 11, 2016). Available at: http://www1.folha.uol.com.br/ internacional/en/ombudsman/2016/07/1790539-what-if-the-pre-plea-bargain-doesnt-turn-into-a-real-plea-bargain.shtml. See also “Weird Justice: Corruption in Brazil”, The Economist (Dec. 10 2015). Available at: http://www.economist.com/news/americas/21679861-courts-treat-suspects-too-harshly-and-convicts-tooleniently-weird-justice. 85. Vieira, L., “Argentina to Expand Use of Plea Bargaining Inspired by Brazil”, Americas Quarterly (Mar. 24, 2016). Available at: http://www.americasquarterly.org/ content/argentina-expand-use-plea-bargaining-inspired-brazil. 86. See Alkon, “Plea Bargaining as a Legal Transplant”, supra at n. 10, p. 357, stating that ‘informal negotiation may look like another form of corruption in countries whose legal systems already suffer from endemic corruption and serious legitimacy problems’. Available at: http://scholarship.law.tamu.edu/facscholar/268/. See also Alkon, “Introducing Plea Bargaining into Post-Conflict Legal Systems”, supra at n. 66, p. 16, discussing the example of Nigeria. 87. See, e.g., Alkon, “Introducing Plea Bargaining into Post-Conflict Legal Systems”, supra at n. 66, p. 10. 88. Smith, R. J. and Levinson, J. D., “The Impact of Implicit Racial Bias on the Exercise of Prosecutorial Discretion”, Seattle University Law Review, Vol. 35 (2012), pp. 816–818. Available at: https://www.law.hawaii.edu/sites/www.law.hawaii.edu/files/content/levinson.pdf. 89. “Reduction in Sentence for a Guilty Plea Guideline: Consultation”, the Sentencing Council (Feb. 11, 2016), p. 7. Available at: https://www.sentencingcouncil.org.uk/ wp-content/uploads/Reduction-in-sentence-for-a-guilty-plea-consultation-paper-web.pdf. 38.