The Disappearing Trial Findings A. Proliferation of trial waiver systems 45. The data collected makes clear that formal recognition, legalisation and regulation of trial waivers has undoubtedly increased dramatically in the last 25 years. The existence of trial waiver systems worldwide has increased nearly 300% since 1990. According to our research from 90 jurisdictions, 19 jurisdictions were identified as having a trial waiver system prior to 1990. Between 1990 and 1999, 13 more jurisdictions adopted a trial waiver system through legislation or case law and a further 22 countries introduced trial waiver legislation between 2000 and 2009. From 2010 to the end of 2015, trial waiver systems spread to 12 further jurisdictions. And this number is continually increasing; according to the survey responses, trial waiver systems are currently under consideration in 5 countries which currently have no such system in place. In other jurisdictions, expansions of current trial waiver systems, or the introduction of different types of trial waiver systems, are being considered. 47. Comprehensively and systematically identifying where trial waiver systems exist uncodified, as an informal practice, has not been possible within the scope of this research, though some such practices were identified (as in Botswana,68 for example). Nonetheless, it is evident from the Phase 1 survey responses that although trial waiver systems have existed in a small number of jurisdictions for many years, the practice became much more wide-spread and prevalent from 1990 onwards. The vast majority of countries identified as adopting trial waiver systems post-1990 have done so formally through statute.69 In some cases, this legislation formalises or regulates a previously existing informal or even unlawful practice, as in Germany.70 48. Categorising the responses by the date that trial waiver systems were introduced in each jurisdiction revealed trends in the global spread of such systems.71 This information is depicted in the following maps. 46. Despite their recent, rapid growth, trial waiver systems are not a new phenomenon. Scholars have longtracked their historical use to varying extents in England and Wales and the US,64 and some have sought to compare them to ancient practices such as the payment of weregild (blood money) in medieval German legal traditions,65 as well as in some jurisdictions today, such as Saudi Arabia. Customary justice systems sometimes feature practices resembling trial waiver systems, such as apologies, and payments to the victim.66 Even in systems that formally disallow trial waivers, informal practices of negotiation over charge or sentence are often common and wellentrenched.67 64. See, e.g., Alschuler, A. W., “Plea Bargaining and its History”, Columbia Law Review, Vol. 79, No. 1 (Jan. 1979). 65. Thaman, S. C., “A Typology of Consensual Criminal Procedures: An Historical and Comparative Perspective on the Theory and Practice of Avoiding the Full Criminal Trial”, from World Plea Bargaining: Consensual Procedures and the Avoidance of the Full Criminal Trial, Thaman, S. C., ed., Carolina Academic Press, Durham, NC. (2010), p. 298. 66. Alkon, C., “Introducing plea bargaining into post-conflict legal systems”, International Network to Promote the Rule of Law (INPROL) (Mar. 2014), pp. 19–20. Available at: http://inprol.org/sites/default/files/publications/2014/introducing_plea_bargaining_0.pdf. 67. See, e.g., Rauxloh, R., “Plea bargaining in national and international law”, Routledge, New York (2012), p. 2, which identifies practices of informal plea bargaining in Germany in the 1970s and 80s, even in the face of formal prohibition. 68. The survey response in relation to Botswana indicated that, while no legislation or formal principles establish or regulate trial waivers there, mention is made in several cases of informal plea bargaining in practice. 69. C.f. State v. Porosanta (2011) 2 BLR 717 HC in Botswana, a country which we have identified as formally recognising trial waivers (known as “plea bargains”) through case law from 2011. In this case, Judge Mothobi recognises that the practice has existed informally for some time, but for which formal legislation still does not exist. 70. Beck’scher Kurzkommentar zur StPO, Sec. 257c. 71. It was not always possible to identify the exact date of introduction of trial waiver systems into law through the administered surveys and complementary desk research. Therefore, rather than categorising the responses by the precise year in which the trial waiver system was introduced, we categorised them according to the following date ranges: pre-1990; 1990 to 1999; 2000 to 2009; and 2010 to 2016. 23.