ABSTRACT
The great majority of Crown Court judges are recruited from the ranks of the practising Bar. Many hold part-time appointments only, spending most of their time as barristers rather than judges. Prosecution and defence counsel have little to fear in seeking the approval of a judge for a charge bargain since all of the parties involved share a common outlook, all stand to gain from shortcircuiting the formal trial process, and all are encouraged to enter into negotiations by the Court of Appeal. Sometimes judges, by indicating their desire for a speedy resolution of the case, exert much indirect pressure on their fellow lawyers to cut a deal. In an example given by McConville et aI, defence counsel had been called to see the judge privately just before a trial listed for three days was due to begin. The judge said he wanted the jury to be able to retire to consider their verdict by 11 am the following morning because he was going on 'his holidays' in the afternoon of that day. This led counsel to try to persuade the client that it would be tactically astute to agree to the trial being truncated because the judge 'is a fast judge ... , he likes the bare bones of a case ... ' (The judge's desire to pack his case and rest his bones in the sun was not conveyed to the client.) The client resisted, which prompted counsel to depict the preference for a full trial as 'complete madness' and 'bloody crazy!'. The client responded: 'You're not the one who might go away [to prison] at the end of the day. I've lost my family and now I might lose my liberty. I want to do it properly, it must be done right; I don't want to rush it now.' It is a pity that more of those working in the criminal courts do not share this freedom perspective or this concern for procedural propriety. The appellate courts proclaim that charge bargains should represent a proper, not merely an inexpensive, outcome to a case, but is this mere lip-service to the interests of justice? The point, after all, of these bargains is to circumvent the very safeguards and procedural protections designed to discover the truth and to produce justice. To take just one example, the rationale for the rule that a jury should not be told of an accused's previous convictions is that the prejudicial effect of this knowledge would outweigh any probative value. Yet barristers engaged in charge bargaining act in full knowledge of any previous record that an accused might have. It is easy to see how a presumption of guilt might arise in these circumstances. The judge, whose independence is supposed to protect defendants against improper pressure, is merely an interested spectator (and potential dealer) at the market place of justice.
