The Disappearing Trial
73. However, it is not always clear that victims’ interests
are routinely served by trial waivers. The Sentencing
Council’s own research noted that “not all of the
victims who took part supported the idea of offenders
receiving a reduced sentence for pleading guilty.”90
Some victims object not only to the reduction in
sentence, but also to the perceived loss of the public,
truth-seeking function of criminal trials. In New South
Wales in Australia, for example, where an informal
system of charge incentives has long been tolerated,
trial waivers (known as “charge negotiations”) became
more formally regulated due to concerns that fact
and charge negotiations did not sufficiently respect
victims. According to the Phase 1 survey response,
in 2001 prosecutors negotiated a plea deal in a highprofile rape case in which the statement of facts agreed
upon by the prosecution and the defendants differed
substantially from the version of events told by the
victims.91 The case received outrage in the media, and
led to a review and new guidelines for prosecutors.
Similarly, at Fair Trials’ roundtable on trial waiver
systems at the Pan-African Lawyers Union Conference
in 2016, participants from Kenya suggested that
under-use of the trial waiver system was driven in part
by concerns about the lack of victim participation in
the process.
vi. Increasing conviction rates and fighting impunity
74. Another reason given for adopting trial waiver systems
is to improve conviction rates (as in Argentina, for
example). One prosecutor in South Africa surveyed
in Phase 2 of the research specifically stated that trial
waivers (known as “plea and sentence agreements”)
were useful in boosting performance rates “in courts
where judges tend to acquit”. This justification is
sometimes framed as the need to use trial waivers to
combat impunity.
75. However, as observed earlier in relation to cooperation
agreements, where convictions are won through trial
waivers in situations where they would not have been
possible following trial due to evidentiary weaknesses,
loss of public faith in the justice system can result,
undermining hoped-for gains in public trust as a result
of improved conviction rates.
vii. Improving human rights protection
76.
Trial waiver systems have the potential to make a
positive impact on human rights protection in criminal
proceedings. Crowded court dockets create bottlenecks
in case processing that lead to excessive periods of
pre-trial detention, a serious and widespread human
rights abuse. Trial waivers are often seen as a way
to reduce pre-trial detention (as was mentioned
for example in the survey from India, and has been
noted in relation to Chile and Bolivia, among others),
both in individual cases and on a national level. Other
jurisdictions have been motivated to introduce a trial
waiver system in order to reduce rates of detention
overall, and to promote the development of more
case-specific, restitution-based sentences. China
is considering expanding its trial waiver systems in
order to reduce reliance on torture and other unlawful
methods of interrogation.92 Nonetheless, without other
systematic procedural safeguards for defendants,
the confession-based justice system preserved by
reliance on trial waivers means that increased respect
for human rights in criminal proceedings has not
necessarily resulted.93
90. Ibid, p. 9.
91. For a detailed overview of the events and subsequent debate, see Johns, R., “Victims of Crime: Plea Bargains, Compensation, Victim Impact Statements and
Support Services”, NSW Parliamentary Library Research Service, Briefing Paper No. 10/02 (Jun. 2002), ss. 7.2.1–7.2.2. Available at:https://www.parliament.nsw.gov.
au/researchpapers/Documents/victims-of-crime-plea-bargains-compensation-vict/10-02.pdf.
92. “China Considers Plea Bargaining in Criminal Cases,” Xinhua. (August 29 2016). Available at:http://news.xinhuanet.com/english/2016-08/29/c_135642723.htm
93. Lynch, E. M., “May Be a Plea, but is it a Bargain? An Initial Study of the Use of the Simplified Procedure in China”, Human Rights in China (Apr. 1, 2009).
Available at: http://www.hrichina.org/en/content/3703#ft27.
39.
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