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PACE adopts draft resolution recognising the threats plea bargaining poses to human rights

admin - September 14, 2018

The Parliamentary Assembly for the Council of Europe (PACE) has adopted a draft resolution that explicitly recognises the threat posed by trial waiver systems to human rights. The resolution calls on Member States to adopt appropriate safeguards in trial waiver systems and calls on the Committee of Ministers to develop guidelines for Member States, something which Fair Trials has been advocating for since we launched the Disappearing Trial report last year.

The resolution recognises the results of the Disappearing Trial report, which involved research across 90 countries with the support of international law firm Freshfields, and which found that trial waiver systems have increased over 300% globally since 1990, without adequate safeguards to accompany them. The resolution and its explanatory memorandum by rapporteur, Mr Boriss Cilevičs, highlights some of the key challenges posed by trial waivers:

Coercion: Our report found that in 2015, 44% of exonerations in the USA were people who had plead guilty, but why would an innocent person plead guilty to a crime they didn’t commit? Trial waivers present a serious risk of coercion, and the resolution warns that in some countries, plea bargaining risks deteriorating into ‘blackmail’. For example, in some jurisdictions, prosecutors have the ability to threaten defendants with ‘stacking’ charges if they go to trial, effectively creating a ‘trial penalty’ for people who choose to exercise their right to a trial.  Trial waivers can also be coercive when safeguards are sidestepped, such as encouraging suspects to make a deal when they have not had access to legal advice, not informing suspects of their right to remain silent and not disclosing all of the evidence against them.

Overcriminalisation: Trial waivers are seen as a way of speeding up criminal justice- authorities can avoid lengthy and expensive trials and still gain a conviction by negotiating a plea agreement with a suspect. However, in some countries, this has effectively created a conveyor belt of criminal justice. Cases are processed faster, but this just allows more cases to be processed and more people to be convicted. Whilst more convictions may sound like a good thing- many of these cases would not have stood up at trial and would have been dropped because of a lack of evidence. This means that police and prosecutors are held to lower standards of investigation, and people who enter the system feel obliged to plead guilty or risk the potential ‘trial penalty’, whether they actually committed a crime or not. Currently, it’s estimated that as many as 1 in 3 people in the USA has a criminal record, this level of criminalisation isn’t good for overburdened criminal justice systems, and it isn’t good for society. High levels of imprisonment are also very expensive for states- meaning that when used improperly, trial waivers aren’t so efficient after all.

Discrimination: The PACE research shows that trial waiver systems risk creating a two tiered criminal justice system: On one level wealthy people who are able to afford expensive defence lawyers are able to negotiate themselves deals and avoid facing punishment. On the other level, poor defendants have overworked legal aid lawyers, who are sometimes more used to negotiating deals rather than scrutinising the quality of the case against the defendant. These people get caught up in the conveyor belt effect of trial waiver systems, and communities from low socioeconomic backgrounds end up disproportionately criminalised.

While all this may sound pretty bleak, this resolution is definitely good news! Trial waivers aren’t inherently bad, and when there are proper safeguards in place, they can result in more efficient criminal justice systems that actually have the ability to take a more ‘tailor made’ approach to justice that takes into account the facts of individual cases. The resolution sets out some of the safeguards that states should be implementing in order to ensure that their criminal justice systems continue to serve their purpose - serving justice.

These safeguards include:

  • Obligatory involvement of a lawyer
  • Minimum requirements for investigations and the disclosure of the results of the investigation
  • Requiring judicial scrutiny of key elements of the plea agreement
  • Limiting the “trial penalty”
  • Prohibiting the waiver of appeal rights
  • Prohibiting the use of a confession as evidence after the failure or revocation of an agreement
  • Counteracting racial and social inequality

Read the full resolution here.

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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