Plea bargains are the source of more dissatisfaction between lawyers and practitioners than just about anything else. To the lawyer, a plea bargain will be a triumph, saving the council the time and expense of a trial and securing a conviction. To the practitioner the same plea bargain will be a sell out and a sad indictment of all the hard work that has been put into the preparation of the case.

A plea bargain is defined as "an arrangement by which a defendant to criminal proceedings may agree to plead guilty to one or more charges in return for the prosecution extending some advantage to him, eg dropping some other charge".

The court will closely scrutinise such an arrangement and will often require its terms to be put into writing to avoid any misunderstanding between the parties as to its terms. The principles of plea bargaining are set out in a practise direction1, and it is a cardinal rule that the judge will never indicate to the parties what sentence he is considering as an inducement to a defendant to change his plea.

Given that plea bargaining can remove the need for a trial, secure a conviction and so save a council time and money, how is it that it can be seen as a sell out? The reason usually lies in the timing of plea bargaining, which frequently takes place during the horse trading that goes on at the door of the court immediately before the first hearing. For the defendant this is the critical time, he needs to plead guilty at this point if he is to claim maximum discount of sentence. For the prosecuting lawyer this is the worst time, as he usually does not have his instructing officer with him and has to deal with what the defence offers as a plea there and then. Courts which are sitting ready and waiting rarely take kindly to being asked to hold on for a bit while the prosecution phones the office for instructions, with no guarantee that the EHP will be contactable.

It is in such circumstances that a plea of guilty to failing to notify in accordance with Riddor is accepted on the basis that having no safety policies or risk assessments charge is dropped. Woe and thrice woe indeed. To add insult to injury, once the lawyer has agreed to the arrangement there is no going back. The word of a lawyer once given is binding on his client, however anguished the client may be as a result. Plea bargaining can be a very useful process. It has the advantages suggested, and makes the prosecution a very low risk activity for the council. So how is it possible to harness the advantages without the officer in the case feeling short-changed by the result?

The responsibility for determining what is appropriate by way of plea bargain lies with the case officer. It is his job to instruct the lawyer, and the lawyer is bound by his instructions. The case officer should consider the summonses that have been issued and should advise the lawyer on what would be and what would not be acceptable by way of a plea bargain.

A pragmatic approach needs to be taken, and the officer needs to recognise that there may be more advantage in accepting a reduced charge rather than hanging on through a trial to try to get conviction on all of them.

Where necessary the authority of a team leader or head of section should be sought before instructing on a plea bargain to ensure the department agrees that any terms are acceptable.

I agree that sometimes evidence may be available to justify all of the charges. But on the basis that the court often just divides the total sentence by the number of charges brought, does it matter? It is better to have a secure conviction through an accepted guilty plea than the pantomime of a trial, with no guarantee of an increase in sentence at the end of the day.

The rationale for plea bargaining is that it is a win-win-win scenario. The prosecutor wins because he has a secure conviction, the defendant wins by having access to discount on sentence and the court wins by not having to hold a trial and so saving on costs. The dictionary defines a "bargain" as "good buy, good value, good deal". The same applies to plea bargains, and as anyone in marketing will tell you, everyone loves a bargain.

1. Practise direction of the Court of Appeal [1976] Crim L.R. 561 as am

Julie Barratt is director of CIEH Wales.