Herald on Sunday editorial: Bargained justice not welcome

Plea bargaining offends the basic principle of open justice. Photo / File

Criminal bargaining is not most people's idea of justice. It can sometimes be justified when informants are rewarded for information that could not otherwise be obtained, but it but should not become a standard method of resolving serious crime. Readers may be dismayed to learn in our report today how plea bargaining has become more common in public prosecutions.

It is a response to a change in the way crown prosecutions are funded. Contracted law firms such as Meredith Connell in Auckland, used to invoice the Crown Law Office for the time spent on a case. Their annual billings usually exceeded Crown Law's baseline budget so, last year, the system was changed to a fixed fee for a case.

The pressure came on prosecutors to ensure the work did not exceed the fee. Obviously, there is a gain for the taxpayer. Previously, prosecutors had no incentive to minimise the time a case might take. Now, it is in their interest to dispose of it quickly.

A person accused of a serious crime might be persuaded to plead guilty to a lesser charge to save the time and cost of a trial. But where is the justice, especially for the victim, if a crime deserving a lengthy jail term is replaced with a charge carrying a lesser sentence?

The Government must have been aware of this likely consequence when it altered the funding system, because at the same time the law was changed to allow prosecutors and defence lawyers to discuss ways to avoid the expense of trials.

Again, there is a gain for the taxpayer. A 2011 review of prosecution services found that when there was no prior opportunity to plea bargain, police would lay an excessive charge hoping to scare the accused into pleading guilty to a lesser charge. It frequently worked, but at the cost to the public of scheduling the trial and wasting the time of a judge and those called for jury service.

That system was unsatisfactory from all points of view but the new system is worse. It gives the accused person too much leverage to bargain down the charge. It can require judges to accept guilty pleas to charges they know do not represent the seriousness of the offence, and victims are left to wonder where is the justice.

The law already allowed police discretion to waive prosecutions of minor offences and give young offenders "diversion". They were unlikely to waste their time and the time of crown prosecutors on cases that were unlikely to warrant a judge's attention. If an offence is serious enough to charge, it ought to be resolved in a public courtroom.

Out-of-court settlements are fine for civil disputes but criminal law is different. The litigation is brought by the state, not by an aggrieved party. The penalties can include imprisonment. For that reason, it is important that criminal justice proceeds in public view.

Plea bargaining offends the basic principle of open justice. Whatever is discussed between the lawyers that results in the bargain, it probably would not bear publication. It cannot possibly be a proper testing of the prosecution case. It is more likely to be about convenience and costs.

The solution may be to bring judges into play. When they hear a guilty plea to a charge that does not represent the seriousness of the facts, they ought to question it. If that puts the prosecution to greater expense, too bad.

Something must be done before crime, too, becomes a bargaining chip.