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On some occasions when the prosecution accept a plea of guilty from a defendant to a lesser offence there is public concern. This statement is made to assist public understanding of this process and the issues involved.
What happens is that, on occasions, the defendant’s barrister will approach prosecuting counsel with an offer to plead guilty to a lesser offence on the basis that the main offence is not proceeded with. There is nothing unusual about this. Experience shows that such an offer is most likely to be made immediately before the trial begins.
The Public Prosecution Service is under a duty to consider whether the offer to plead guilty should be accepted. The Prosecution Service will take the advice of independent prosecuting counsel and assess the factors likely to affect the outcome of the case such as the strength of the evidence against each defendant. A decision is reached after a scrupulous assessment of the evidence and a rigorous examination of the demands of justice including the proper interest of victims. The prosecution does not bargain with the defendant.
With an offence such as murder it will often be the position that the prosecution is based upon a single fatal blow inflicted by one defendant. Other defendants may be charged with the same offence on the basis of a legal principle known as “joint enterprise” even though they did not, in fact, inflict any blow or admit their involvement. Their liability for murder will depend upon the strength of the evidence which establishes whether they realised that the person who inflicted the fatal blow might kill or intentionally inflict serious injury. Each case will turn on its own facts. Not everyone present at the scene of a killing is necessarily guilty of murder.
Where one defendant at the beginning of the trial pleads guilty to murder by admitting he inflicted the fatal blow, this may have an effect upon a jury trying other defendants prosecuted in connection with the killing who did not strike a single blow. The decision whether to accept a plea of guilty to a lesser offence or risk the acquittal of the other defendants is a difficult decision for the prosecutor to take using his professional judgement including his assessment of the effect of the plea of guilty. In reaching this decision it is vital that the interests of justice are satisfied by the course which is taken.
The expression “plea bargaining” is wrongly used to describe this process. Plea bargaining, which involves the prosecution offering to accept a plea to a lesser offence, has no place in the practice or procedures of the Prosecution Service.