Plea Bargaining Comparative

View metadata, citation and similar papers at core.ac.
uk brought to you by CORE

provided by SZTE Doktori Értekezések Repozitórium (SZTE Repository of Dissertations)
A Comparative Analysis of Plea
Bargaining and the Subsequent
Tensions with an Eﬀective
and Fair Legal Defence
Samantha Joy Cheesman
Szeged, 2014
University of Szeged
Faculty of Law and Political Science
Supervisor: Prof. Dr. Badó Attila

Abstract
If we do not maintain justice, justice will not maintain us. - Francis

Bacon
This PhD thesis explores the various conceptualisations of the right to a fair trial.This
thesis focuses on the right to a fair trial and more specifically on Article 6 (3) (c)
of the European Convention on Human Rights which relates to the right to have
counsel and representation at all stages of the trial. A central theoretical basis for
this thesis is that the concept of what constitutes equality of arms is at a cross roads
in the European legal tradition and it is by drawing on the experiences of other juris-
dictions we might draw closer to understanding of this concept. Certain European
States have better incorporated a system whereby access to legal representation is
safeguarded. The thesis will also discuss other relevant instruments which serve to
protect and uphold the right to a fair trial within their own jurisdictions as a means
of comparative analysis. It will be asserted that practices which have developed so
far as a means by which to secure a fair trial, if not appropriately handled will actu-
ally serve to undermine the sanctity of the right to a fair trial, the very thing that
they are suppose to be upholding. One such practice which will form the basis of
the comparative research of this paper is plea bargaining and its derivatives in Eu-
rope.The practice of plea bargaining challenges the very premise of the trial; which is
to find the truth and see justice done. This thesis proposes to examine the tensions
between the state and the defendant when it comes to the protection of defendant’s
fair trial rights. This was achieved employing both a normative and comparative
approach to the subject. The normative methodology provided the basis from which
the comparative approach was adopted. The comparative methodology took into
consideration not only the legal principles which have developed with regards to plea
bargaining but also considered the appropriateness of translations and transplants.
The divergent implementations will be looked at in the wider European context as
to what mechanisms have been put in place such as the European Union Stockholm
3
Programme (2009-2014) and its Roadmap which are being used as the vehicle by
which to regain the ground lost to defendants right to legal representation.
The thesis will also consider the relationship between plea bargaining and the prin-
ciple of equality of arms. Equality of arms acts as a safeguard whereby we try to
protect the defendant from being incarcerated from something they did not do and
or becoming the victim of a miscarriage of procedural justice. The ECtHR has
established a two-stage test, the appearance test and the substantial disadvantage
test, for assessing the adherence of the principle of equality of arms. Equality of
arms establishes that access to a lawyer is an integral element of the right to a fair
trial. The other two elements of an effective defence and participation are where
the member states are becoming unstuck with regards to the practical application
of the ECHR and the ECtHR’s decisions. This PhD thesis will argue that we have
a legal system which is outdated as compared to our now modernistic views of what
constitutes truth. If this is the case then how or should the justice system adapt its
pretence of pursuing the truth when it so clearly does not do this when employing
alternatives to justice such as plea bargaining.
It is increasingly evident from the emerging case law of the ECtHR that the ECHR
does not cover all aspects of effective criminal defence. This results in varying
practices across the different member states. In the countries examined in this
thesis there are shortcomings when it comes to ensuring an effective defence for the
defendant. In addition to these discrepancies between the spirit of the ECHR and
its application there have also developed other limitations on the effective criminal
defence. Tactics have developed which are employed to emphasis the efficiency of the
trial at the expense of the defendant’s procedural safeguards or the use of pre-trial
detention as a mechanism by which to secure an admission of guilt.
The ECtHR has addressed the issue of plea bargaining in terms of causing possible
violation of the ECHR for the applicant rather than the content, matter and practice
of plea bargaining .
Despite the evident positives for both sides engaging in this practice there still
remain numerous pitfalls. The most evident concern is that innocent defendants
will plead guilty to a crime they did not commit.
The thesis will conclude that the abrogation of the right to an effective and fair
legal defense is an endemic issue which is rife not only throughout Europe but also
in America. This practice also erodes the fundamental principle that trials as well as
4
the administration of justice ought to be public. Related pitfalls are that the bargain
serves to reduce the impact of deterrence when the litigation moves from a question
of whether to one of how much time the defendant should get in the particular
circumstances. As will be noted below in the case analysis of plea bargaining the
very term ’bargain’ can provide an unhelpful impression. The reason for this is that
the term does not reflect the unequal bargaining position of the defence and the
prosecution.
5
Contents
1 Research Methodology 1
1.1 The Research Question . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1.1 Positioning of the research . . . . . . . . . . . . . . . . . . . . 2
1.1.2 Purpose of the research . . . . . . . . . . . . . . . . . . . . . . 3
1.1.3 Research design and Methodology of the research . . . . . . . 8
1.1.4 Structure of the thesis . . . . . . . . . . . . . . . . . . . . . . 9
2 Fairness: The Right to a Fair Trial 12

2.1 The Right to a Fair Trial . . . . . . . . . . . . . . . . . . . . . . . . . 12
2.2 Fairness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
2.3 Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
2.3.1 Packer’s Criminal procedure models . . . . . . . . . . . . . . . 25
2.4 The historical origins of the criminal procedural process . . . . . . . . 30
2.5 A Theory of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2.6 Rights for all? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
3 Equality of Arms 45
3.1 Equality of Arms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
3.2 The development of the principle of equality of arms in Europe . . . . 53
3.3 The meaning of equality within equality of arms . . . . . . . . . . . . 55
3.4 The Belgian Cases: development of the equality of arms principle . . 59
3.4.1 Jespers v. Belgium: case analysis . . . . . . . . . . . . . . . . 60
3.4.2 Lamy v. Belgium: case analysis . . . . . . . . . . . . . . . . . 62
3.5 Equality of arms in the U. K. . . . . . . . . . . . . . . . . . . . . . . 62
3.6 The U. S. situation: The development of equality of arms . . . . . . . 65
3.7 Equality of arms in Germany . . . . . . . . . . . . . . . . . . . . . . 69
3.8 Italy’s development of the principle of equality of arms . . . . . . . . 71
3.9 Hungary and the development of the principle of equality of arms . . 74
i
3.10 Serbian approaches to the principle of equality of arms . . . . . . . . 77
3.11 Concluding thoughts . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
4 Access to Justice 90
4.1 Defining access to justice in light of the Salduz v Turkey decision . . 95
4.1.1 The right to assistance of counsel . . . . . . . . . . . . . . . . 100
4.1.2 The two stage test of waiver . . . . . . . . . . . . . . . . . . . 103
4.2 Legal Aid . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
4.2.1 The right to counsel in the U. S. . . . . . . . . . . . . . . . . . 109
4.2.2 Access to counsel and Legal Aid in the United Kingdom . . . 115
4.3 Case studies: Hungary and Serbia . . . . . . . . . . . . . . . . . . . . 120
4.3.1 Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120
4.3.2 Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
4.4 Summary and Conclusions . . . . . . . . . . . . . . . . . . . . . . . . 128
5 Plea Bargaining: the pursuit of justice? 131

5.1 The presumption of innocence . . . . . . . . . . . . . . . . . . . . . . 140
5.2 Conclusion: Calling your bluff . . . . . . . . . . . . . . . . . . . . . . 151
6 Plea Bargaining: the Benefits as well as the Pitfalls 157

6.1 Defining plea bargaining . . . . . . . . . . . . . . . . . . . . . . . . . 157
6.2 The Development of Plea Bargaining in the United Kingdom . . . . . 161
6.3 The United Kingdom’s Sentencing Guidelines. . . . . . . . . . . . . . 165
6.4 The Development of Plea Bargaining in the United States of America 166
6.4.1 Strickland v Washington (466 U.S. 668 (1984)) . . . . . . . . . 174
6.4.2 Hill v Lockhart (474 U.S. 52 (1985)) . . . . . . . . . . . . . . 176
6.4.3 Padilla v Kentucky (No. 08-651 (U.S. Mar. 31, 2010) . . . . . 178
6.4.4 Missouri v Frye (No. 10-444 (U.S. Mar. 21, 2012)) . . . . . . . 179
6.4.5 Lafler v Cooper (No. 10-209 (U.S. Mar. 21, 2012)) . . . . . . 183
6.4.6 Burt v Titlow (12-414 U.S. 6th Cir. OT 2013) . . . . . . . . . 186
6.4.7 Summary of US cases . . . . . . . . . . . . . . . . . . . . . . . 188
6.5 The European development of Plea Bargaining . . . . . . . . . . . . . 189
6.5.1 Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
6.5.2 Italy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207
6.5.3 Hungary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
6.5.4 Serbia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
ii
6.6 Plea Bargaining in the ECtHR case law . . . . . . . . . . . . . . . . . 222
6.6.1 Deweer v. Belgium (Application number 6903/75) . . . . . . . 224
6.7 More pitfalls than benefits . . . . . . . . . . . . . . . . . . . . . . . . 230
7 Conclusions and recommendations 234

7.0.1 What constitutes a fair trial? . . . . . . . . . . . . . . . . . . 234
7.0.2 What safeguards are in place to protect the defendant’s right
to a fair trial? . . . . . . . . . . . . . . . . . . . . . . . . . . . 236
7.0.3 What are those structures/practices which act as barriers to
access to justice? . . . . . . . . . . . . . . . . . . . . . . . . . 237
7.0.4 Does the expedited form of justice that plea bargaining offers,
require a reconceptualisation of the right to a fair trial? . . . . 238
7.0.5 What is the role of plea bargaining within the modern trial? . 239
7.1 Recommendations: The Way Forward and Beyond . . . . . . . . . . . 242
Bibliography 247
List of Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257
List of ECtHR Cases . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 260
iii
1 Research Methodology
1.1 The Research Question
The right to a fair trial and the practice of plea bargaining have, as of yet, to be
discussed together. The academic literature has focused predominantly on each issue
in isolation and thus the aim of the thesis is to fill this gap in the academic research
of this field.
The comparative research approach seeks to draw parallels and contrasts between
two similar or competing systems of thought, among several cultures or within cross-
cultural societies. Comparative research methodology is carried out by using a
variety of tools, including surveys, personal observation and analysis of national
data and is useful for classifying shared social phenomena; placing cultural values
in context and analysing cultural differences. The comparative approach was used
in this thesis to research the practice of plea bargaining. An examination of the
constitutional practices and case law of the selected countries from a comparative
perspective shed a helpful and new light upon this topic. By analysing the case
law of the countries concerned, it is possible to glean a picture of the practical
interpretation of the right to a fair trial within the context of the practice of plea
bargaining.
This thesis argues that the current focus of the international debate concerning
the right to a fair trial and access to justice has overlooked the role of alternative
practices to justice which are not necessarily institutional barriers.
The recent initiatives of the European Union in its Stockholm Programme and
Roadmap, which includes a proposal for a directive on the presumption of innocence
(which has far reaching implications for the practice of plea bargaining), present
an important opportunity to consider the impact of the intense trend towards a
prosecution-heavy armoury of the right to a fair trial. The historical development
1
of plea bargaining and its relationship with the right to a fair trial and access to
justice will be considered within this context.
The following general research questions are an important aspect of this research
and will act as signposts for the thesis. These research questions are:
1. What constitutes a fair trial?
2. What safeguards are in place to protect the defendant’s right to a fair trial?
3. What are those structures/practices which act as a barriers to access to justice?
4. Does the expedited form of justice that plea bargaining offers, require a recon-
ceptualisation of the right to a fair trial?
5. What is the role of plea bargaining within the modern trial?
These questions will assist with the unpacking of the fundamental legal concepts such
as the principle of equality of arms; due process and the presumption of innocence
and truth. They will also help to show that there is a lack in knowledge concerning
the implementation, implications and instruction of plea bargaining.
In raising these questions it is hoped that a new understanding can be forged of
the meaning of access to justice and effective defence within the context of the plea
bargaining culture.
1.1.1 Positioning of the research
The current research is conducted against the backdrop of the economic recession
which has far reaching global ramifications for justice. The justice system can-
not escape the ever-encroaching cuts to funding in the name of a more efficient
and expedient trial process. Expediency and efficiency are not necessarily negative
movements rather it is when they are applied in a wholesale short-sighted manner
and with no consideration for procedural safeguards of the defendant that they be-
come an issue. It is within this climate that the research of this thesis is conducted.
Unfortunately, the defendant is usually the casualty of reforms from the analysis of
the tensions between the state and the individual.
In order to answer the question “why is it necessary to address the phenomenon
of plea bargaining with relation to access to justice?”, it is first of all necessary to
engage with “what is a fair trial”. The practice of plea bargaining may seem to be
2
ill -fitted to a access to justice and fair trial discussion as plea bargaining should
be expediting the process and circumventing the workload of court rather denying
access to justice . It is for these very reasons that it is imperative to discuss plea
bargaining in conjunction with the right to a legal defense because in principle it is
not a bad technique but there is a strong need for regulation and establishment of
further safeguards. The European Court of Human Rights has yet to hand down any
definite guidance concerning the use of plea bargaining amongst the member states.
This omission will form a central argument of this thesis leading us to question the
basic premise of the right to a fair trial.
The aim of the thesis is to show that by comparatively examining legal systems,
it became apparent that there are more similarities then differences. It is this the-
sis’ hypothesis that the similarities were based upon the commonality amongst the
member states in their violations of human rights rather than their protection. It
was apparent that member states use the same rhetoric in justifying their violations.
The countries that have all struggled with the same conflicting issues were chosen
for the comparative analysis. Each of them have adopted diverging mechanisms
to reconcile their systems with the protection of fundamental rights. It is these
different mechanisms that provide the impetus for examining the defendant’s fair
trial rights. This became an area where there was the most similarity amongst the
member states. A recurring theme amongst the Council of Europe member states
was the treatment of the indigent defendant and their subsequent barriers to justice.
This thesis will give an insight into the mechanisms which block access to justice as
well as some suggestions for alternative solutions.
These issues were then expanded upon in the five chapters. Each chapter is a self
contained expose into a related area of the debate into the plea bargaining practice.
1.1.2 Purpose of the research
This thesis seeks to show that there have developed alternative practices to the
trial which are now calling into question and challenging pre-existing ideas of what
constitutes a fair trial. The ability for one to waive their right to a trial and opt for
a plea bargain requires the question “is it possible for a defendant to revoke their
right to the protection of certain human rights” to be answered. This situation also
calls to the fore the need for the approaches to justice to change as the face of justice
3
and access to justice evolve. This must happen to ensure that the defendant remains
protected at all stages.
Plea bargaining is a controversial practice which has undeniably worked to help the
trial to be more efficient and expedient. Despite this, there remain several concerns
over its practice and its adoption in several of the member states. The introduc-
tion of this predominantly Anglo-American model into continental Europe has not
been without its difficulties. Its incorporation has once more highlighted the se-
vere discrepancies between the member states in their procedural and constitutional
guarantees of fair trial rights as well as the safeguards that they have in place to
ensure that the defendant’s rights are upheld. Within the Anglo-American context
of the practice of plea bargaining, there have been several notable cases which have
concerned the plight of the indigent defendant.
When conducting case law analysis, it quickly becomes apparent that the effects
of the poverty gap become more pronounced when entering the legal and access to
justice arena. It is in this space that the true citizens, those who have and can ex-
ercise their human rights, are revealed. The indigent defendant in the plea bargain
process are completely at the bequest of the prosecution. This situation creates a
dichotomy whereby the indigent defendant is placed in a position which is dispro-
portion to that of their opponent and the state. In Europe, plea bargaining was, like
the Anglo-American model, introduced through the back door and developed par-
allel to the trial. This parallel development led, in some cases, to the overlooking of
some of the entitled safeguards due to the defendant. In some cases, this protection
is completely disregarded.
Attention is also given to the role of the ECtHR and why until recent times, rela-
tively little attention has been given to plea bargaining. In particular, the case of
Natasvlishvili and Togonidze v. Georgia1 is considered in the context of the overar-
ching problems concerning the infringements of the safeguards of the defendant. The
ECtHR has up, until now, had very limited case law jurisprudence on the practice
of plea bargaining which can help to inform regarding its compatibility with Article
6 of the European Convention on Human Rights (ECHR). This omission will form
a central argument of this thesis leading us to question whether, Will a black belt
in Jurisprudence be the best self-defence from the machinations of the Kafkaesque
Community? Plea bargaining is now becoming a defining feature of the criminal
1
Application No. 9043/05, Judgment, Strasbourg, 29 April 2014
4
procedure and the omission of addressing its far reaching effects upon the fair trial
is at best remiss at worst devastating for the criminal defendant.
The basic premise of this paper is that a new era of trials is dawning which is
driven by the internalisation of criminal justice systems. One of several factors in
the process is the move to foster mutual respect and trust in judicial decisions to
create ease and coherency in the processing of criminals.
This progressive move has also forced the recognition that there is not a cohesive
adherence to the ECHR by all member states and there are huge variations in the
procedural applications of defendant’s rights.
This thesis focuses on the right to a fair trial and specifically on Article 6 (3) (c) of
the ECHR. Article 6 (3) (c) stipulates the right to have counsel and representation
at all stages of the trial. A central theoretical basis for this thesis is that equality
of arms is currently at a crossroads in the European legal traditions. A better
understanding of this dynamic is achieved by using a comparative lens when drawing
on the experiences of other jurisdictions. Certain European States have been more
successful in achieving a system whereby access to legal representation is easier to
secure. The thesis will also analyse the domestic legislation and case law which serve
to protect and uphold the right to a fair trial within their own jurisdictions as a
means of comparative analysis. Particular attention will be given to the constitution
of the United States of America and the United Kingdom as both systems have
enshrined and developed the concept of due process.
It will be asserted that practices which have been incorporated to help secure a fair
trial, if not appropriately handled will actually serve to undermine the trial itself.
This thesis proposes that there is a need for a re-conceptualisation of the right to
a fair trial in order to continue to ensure that fundamental principles are adapted
and that they continue to provide protection for the defendant.
Plea bargaining has become an internationally used tool in cases including Jacob
Zuma2 and O. J. Simpson3 . The Council of Europe and the European Parliament
have been encouraging harmonisation and mutual trust amongst the judiciary and
it is never more pertinent to address this black hole which has been allowed to
2
http://constitutionallyspeaking.co.za/plea-bargain-for-zuma-maybe-not-a-bad-idea/, (accessed
on the 16th of May 2014)
3
http://www.nbcnews.com/id/28083134/ns/us_news-crime_and_courts/t/simpson-plea-
deal-wouldve-meant-less-time/#.U3Y-4h_U_q0 (accessed on the 16th of May 2014) and
http://www.bbc.com/news/world-us-canada-25117110 (accessed on the 16th of May 2014)
5
continue relatively unchecked. Courts are under increasing political, social and
economic pressure to ensure that the court system is both efficient and expedient
which sometimes results in human rights falling at the way side. This is ironic as the
right to a fair and speedy trial forms one part of the Article 6 ECHR requirements.
At a heart of the right to a fair trial is the expectation that the guilty get punished,
victims are vindicated and the state follows through with punitive actions. This
state of affairs is very utopian as we are daily confronted with news which informs
of the inadequacies of this system. There are two questions which can be asked of
the criminal justice system
“could we convict fewer innocents without acquitting too many guilty?”4
This model is looking for ways to ensure that due process rights are not neglected
in the quest for convictions. That is the due process rights of both the innocent and
guilty defendant’s. It can also be formulated as Thomas Jefferson expressed,
“It is more dangerous that even a guilty person should be punished
without the forms of law than that he should escape.”
The view at the other end of the spectrum is that it is better to punish then allow
the guilty to slip through the net.
The body of research within this thesis sadly shows that the right to a fair trial does
not exist beyond certain barriers. One such barrier is the right to legal representa-
tion.
By comparatively examining legal systems, it became apparent that there were more
similarities then differences. The similarities were unfortunately due to human rights
violations. It was apparent that member states use the same rhetoric in justifying
their violations. The countries were chosen for the comparative analysis based upon
the fact that they have all struggled with the same conflicting issues. Each of them
have adopted diverging mechanisms to reconcile their systems with the protection
of fundamental rights. It is these different mechanisms which provide the impetus
for examining the defendant’s fair trial rights. This became an area where there
was the most similarity amongst the member states. A recurring theme amongst
the Council of Europe member states was the treatment of the indigent defendant
and their subsequent barriers to justice.
4
H. L. Packer. “Two Models Of The Criminal Process”. In: U. Penn. L. Rev. 113 (1964), pp. 1–68.
6
A significant problem for the indigent defendant is not being able to access adequate
representation. This can result in protracted trials and appeals to rectify the pre
trial abnormalities.
Member States are constantly pushing the boundaries of human rights protection.
The ECtHR prefers not to interfere with the internal conduct regulation within the
CoE member states but this approach has meant that the attempted E. U. har-
monisation of criminal procedure has resulted in considerable variation in lawyers’
conduct amongst member states. Member states choose to regulate the behaviour of
counsel either by constitutional principles or through procedural rules. The current
direction in which the member states are moving is creating an irreconcilable gulf
between the indigent defendant and the rich defendants who can afford their justice.
This state of affairs invariably results in questions such as “Is justice always fair?”
and “Should justice be fair?” are obvious questions which need to answered. There
are inevitably situations, in the exercise of the law, where individuals will feel that
the law has not been fair to them but that does mean that the rule of law has been
violated. The purpose of the law is to uphold the moral code which a particular
society feels is important. If the people do not feel that the law reflects the societal
needs, it becomes very difficult for the law to be enforced and followed. These kinds
of situations lead to dictatorships and sometimes even revolutions.
The purpose of law is to maintain order and balance. This is achieved with varying
degrees of success across the Member states which does not always invoke the great-
est confidence. If an individual commits a crime, they should be tried according
to the law of the land and then appropriately punished. This maxim fits with the
general idea of society that the guilty should be punished and the innocent should
walk free. In theory this should work well but the law does not always achieve its
intended ambitions. The guilty can negotiate their justice and the innocent some-
times are placed in a situation where the best thing to do would to be to plead
guilty. This thesis examines these questions where the intersection of the indigent
defendants and the criminal procedure law do not meet and results in miscarriages
of justice.
The goal of the research was to shed light on and investigate why the academic
literature has thus far not engaged in discussing the interplay between the access to
justice and plea bargaining.
7
1.1.3 Research design and Methodology of the research
1.1.3.1 Sources
The research was conducted by predominantly considering primary sources such as

the legislation of the European Union, especially the Roadmap and the Measures A
to F. Additionally, the relevant legislation of the countries selected for the analysis
were also included. Constitutional provisions and other similar founding documents
such as the Magna Carta and the Bill of Rights were also taken into consideration.
Secondary sources were drawn from a wide pool and wherever possible literature
pertaining to the relevant country was used in its native language and written by
authors who originated from the countries in question. As the question of plea
bargaining has been written about extensively in the U. S. a sizeable amount of
the literature on this subject comes from the U. S. or from other Western authors
commenting on the situation there.
1.1.3.2 Terminology
The practice of plea bargaining has become a well developed concept in the West
and in particular the U. S. as such the terminology available is couched in the
understanding of a common law system. This has repercussions for how the meaning
of plea bargaining is understood in the varying systems. When referring to the
practice of plea bargaining in the context of the U. S. , an explanation is given of
the different types and methods which can be used as tactics. As this thesis takes
into consideration the diverging practices of plea bargaining, the thesis, wherever
it is possible, uses the language of the country being observed with the officially
recognised translation of the term. Where appropriate explanation is given of the
meaning of charge bargains and sentence bargains. Unless otherwise stated the use
of the expressions plea bargaining and negotiated process are used as synonyms in
connection to the practice on Continental Europe.
Terms such as fair trial, access to justice and legal aid have their understanding
in international instruments such as the European Convention on Human Rights,
the International Covenant on Civil and Political Rights as well as the European
Charter on Fundamental Freedoms. This is not an exhaustive list by any means
but these three documents combined together provide a contextual understanding
8
of how the right to a fair trial, access to justice and legal aid should be understood.
It is on this basis that reference is made to and expounded upon in this thesis.
1.1.4 Structure of the thesis
The thesis is made up of seven chapters. There are five core chapters which discuss
the key matters central to the understanding of both the negative and positive
aspects of the practice of plea bargaining. A common theme that runs throughout
all of the chapters is the choice of five countries which were analysed and discussed
in a comparative approach. In addition to the comparative approach, there are
three overriding issues which are discussed in all of the chapters. These are the
presumption of innocence; access to justice and the principle of equality of arms.
Each of these topics is then discussed in light of the practice of plea bargaining and
the right to a fair trial. It is central to the understanding of the structure of the
thesis that it is understood that all five of the chapters should be read in a concurrent
way. These three parallel themes should be considered of equally importance.
Chapter two provides the theoretical framework within which the question of what
exactly is a fair trial can be addressed. The chapter provides an overview of the
historical development of the right to a fair trial and how the concept of fairness
has been interpreted by both the U. S. Supreme Court and the European Court of
Human Rights (ECtHR). In conjunction with fairness, the concept of due process
was introduced in the framework of Packer’s dual demarcation of having either a
crime control model or a due process model. These two approaches are then used
to illustrate the competing theories of access to justice.
Chapter three then builds upon this theoretical framework to discuss the principle
of equality of arms as developed by the ECtHR. The evolution of the concept of
equality of arms is analysed in the context of the case law and legislation of the
selected countries. This is done so as to provide a working theory within which to
place the discussion of plea bargaining and its tension with the principle of equality
of arms requirements.
Chapter four revolves around the question of access to justice. This chapter is both
at the middle of the thesis and at the heart of the question over the practice of plea
bargaining. In the middle between the trial and the plea bargain is the lawyer who
is the conduit to access justice. The chapter discusses the problems both with the
9
U. S. Supreme Court’s and the ECtHR’s interpretation of effective defence as well

as waiver. It is argued that in both cases the tests provided by both courts are not
adequately clear. Based upon the preceding chapters the topic of plea bargaining is
introduced in chapters four and five.
Chapter five raises the hypothesis that the role of plea bargaining in modern trials
is challenging the concept of the search for the absolute or probable truth. It is
this challenge which is forcing a reconceptualisation of the right to a fair trial as a
new framework must be formulated to ensure that plea bargaining does not infringe
the defendant’s rights. It is argued that problems occur because there has of yet
to develop an adequate jurisprudence which can effectively conceptualise the role of
plea bargaining.
Chapter six builds upon the theoretical questions raised by chapter five and seeks
to provide an explanation for and definition of plea bargaining. A historical and
modern day account of the of the practice of plea bargaining development across
the five selected countries is presented. Comment is made upon their similarities
and differences in light of best practices which could be observed. Additionally,
extensive case law is analysed so as to provide a working illustration of the practical
application of plea bargaining in everyday situations. The ECtHR’s recent decision
concerning the practice of plea bargaining is also analysed as illustrative of the fact
that there is yet still much misunderstanding about and over how this practice could
be best monitored so as to afford the best possible safeguards for the defendant.
Chapter Six summarises these studies. The observations of the plea bargaining
practice of several countries shows that practice of plea bargaining has drifted con-
siderably from its creators and those who practiced it its original intention. The
early requirements, as in the case of Brady v U. S.5 , that there be overwhelming
evidence of guilt have been replaced with approximation and expediency. As was
illustrated in the German and Italian cases, plea bargaining has run into consti-
tutional barriers which have resulted in creative application of the law. Italy is
illustrative of a country where the practice of plea bargaining has morphed resulting
in it no longer resembling the pure bargain relationship but rather an abbreviated
trial. This situation is particularly troubling as it affords the defendant none of the
benefits of a trial and neither the fair trial safeguards which they are due.
Plea bargaining is undeniably a dominant force in criminal cases and as such there is
5
397 U. S. 742 (1970)
10
a need to address the fundamental violations. Plea bargaining is a major avenue for
resolving conflicts which is not living up to the due process requirements and this
is a trend which is now gathering momentum in the countries which were observed.
Plea bargaining in its original context is a good thing. Irrespective of this fact
expansion to a wider sphere has resulted in an uneven judicial process. It is evident
that safeguards need to be reinforced to protect the defendant. It is in light of
these problems that Chapter seven provides some conclusions and recommendation
for the way forward and for forging a happy coexistence with the practice of plea
bargaining.
11
2 Fairness: The Right to a Fair Trial
2.1 The Right to a Fair Trial
“If, in order to do justice, some adaptation of ordinary procedure is called

for, it should be made, so long as the overall fairness of the trial is not
compromised.”1
The expression of overall fairness is frequently used by the European Court of Human
Rights (ECtHR) when referring to the workings of the trial. The role of harmonising
is an issue which has been occurring in the background. This is in part due to the
fact that there are lots of conventions which have been signed so the Member states
have all been inadvertently adopting provisions which are similar to each other.2 It is
not an easy process to harmonise criminal procedure and this is not helped by each
criminal justice system having its own historical, political and socio-psychological
contributing factors . The European Convention on Human Rights (ECHR) has had
a considerable impact upon and has shaped the criminal procedure of the Council
of Europe (CoE).3 The ECHR objective is to enforce substantive criminal law but
also to arrive at conclusions in a factually accurate manner and in a way which
respects basic human rights.4 The ECtHR’s functioning has undeniably brought the
criminal justice systems closer. The ECtHR’s role is to ensure the preservation of
the standard achieved and to make sure that it does not drop below the acceptable
standard. One way in which the ECtHR can do this is by ensuring that their case
law is followed. There is great power in their decision making as it leaves no room
for alternative interpretation. Member states can pick up on how and what they
should be changing in their national legislation. New countries, seeking the status
1
per Lord Bingham, R v. Davis, [2008] UKHL 36, (HL) [26 (2)]
2
K. Bárd. Fairness in Criminal Proceedings Artice Six of the European Human Rights Convention
in a Comparative Perspective. Közlöny Budapest, 2008, p. 9.
3
Ibid.
4
Ibid., p. 14.
12
of accession, can access previously decided ECtHR case law this is a good starting
place for determining whether they are in line with the human rights protection
envisioned by the ECtHR.5
The role of the ECtHR is significant in that it determines the importance and
weighting of the human rights in the ECHR that should be given by the member
states. In relation to Article 6, the ECtHR has stated in its case law that a restrictive
interpretation of Article 6 is not permissible.6 The ECtHR gives the impression
that the fair administration “of justice is of utmost importance in a democratic
society.”7 This fair administration of justice can only take place within an order
where democracy, the rule of law and respect of human rights is upheld. Judicial
recourse and the quality of the proceeding are very important for ensuring virtually
all of the Convention’s provisions.8 In determining the overall fairness of the trial
the ECtHR takes into consideration the democratic values which are reflected in the
procedural law’s. As Trechsel has argued,
“that there is a link between the political system - or the political ideol-
ogy underlying it - and the system of criminal proceedings.”9
This is supported by the values such as the right to express one’s position under
identical conditions and to influence the decision on equal terms being deemed as
being characteristic of democracy. The rule of law implies that there is a real access
to justice where there is an adhesion to the principle of legality as well as judicial
guarantees being in place.10
The ECtHR has created a strange juxtaposition of the proceeding where the trial
may be considered to be overall fair even if there was an individual procedural
irregularity. Whereas the procedure could have been adhered to but the trial will
be considered unfair by the ECtHR case law jurisprudence. It is only possible to
speak of the overall fairness of the trial being respected in an environment where
the rule of law is also upheld. If access to justice and legal remedies are available
and there are judicial proceedings which can ensure these guarantees then we can
5
Bárd, Fairness in Criminal Proceedings Artice Six of the European Human Rights Convention
in a Comparative Perspective, pp. 25–27.
6
Ibid.
7
Ibid., p. 35.
8
Ibid., p. 46.
9
S. Trechsel. “Why Must Trials be Fair?” In: Isr. L. Rev. 1997 (31/ 1-3), pp. 95–119.
10
in a Comparative Perspective, p. 45.
13
talk of a system which has the ability to protect the overall fairness of the trial.11 In
assessing the overall fairness of the trial, the ECtHR will also take into consideration
how the truth was pursued and was the presumption of innocence respected. Both
of these elements help to guarantee the right to a fair trial.
In a number of limited circumstances, the ECtHR is willing to apply different fairness
safeguards and standards depending upon the gravity of the committed offence. The
ECtHR is willing to accept a limitation upon those implied rights such as the equality
of arms, the right to silence or the right of the defence to have access to all of the
evidence gathered by the prosecution.12 The ECtHR makes a very clear distinction
between the implicit and explicit elements of the right to a fair trial. If an explicit
right has been violated then the right to a fair trial, will normally be held, has also
been infringed.13
“The right to a fair trial is therefore an unqualified right, in as far as
there is no situation in which anyone might be deprived of this right.
No other right or interest may be weighed against the right to a fair
trial. Any balancing takes place within the context of the right to a fair
trial.”14
The adjacent elements which may call into question the fairness of the trial must be
considered when looking at the fairness rights as developed by the ECtHR interpre-
tation of Article 6 of the ECHR. These phenomenon that challenge the fairness of
the trial are the defendant’s right and ability to waive their right to both be present
at the trial itself.
In the case of Al-Khawaja and Tahery v The United Kingdom15 the ECtHR ex-
plained what it meant by this expression of overall fairness of the trial.
The Court recalls that the guarantees in paragraph 3(d) of Article 6 are
specific aspects of the right to a fair hearing set forth in paragraph 1 of
this provision which must be taken into account in any assessment of the
fairness of proceedings. In addition, the Court’s primary concern under
Article 6 § 1 is to evaluate the overall fairness of the criminal proceedings
(para 118)
11
12
Ibid., p. 59.
13
Ibid., p. 62.
14
Ibid., p. 62.
15
Applications Nos. 26766/05 and 22228/06, Judgment, Strasbourg, 15 December 2011
14
This statement of the court shows that all of the elements play a role in securing
the overall fairness. It will be looked at in its entirety and also on a case by case
basis.
The ECtHR specified that overall fairness will be looked at in light of any irreg-
ularities that may have happened such as the inability to question witnesses, the
defendant not being present at their own trial or the lack of legal representation.
The ECtHR will consider all of these factors when determining if a violation has
impacted the overall fairness of the trial for the defendant. In most cases the ECtHR
will hold that there has indeed been a violation of Article 6 when the infringement
impacted upon the domestic court’s final judgment. That is if it had not been for
the infringement of the article the court would have ruled differently.
The expression overall fairness has since become the benchmark against which do-
mestic court practices will be measured as to whether they conform to the Article
6 ECHR meaning of the right to a fair trial.
The establishment of basic legal standards of what constitutes a trial are needed
in order to assess what makes a trial fair. Article 6 of the ECHR; Articles 47-50
of the European Charter and Article 14 of the International Covenant on Civil and
Political Rights (ICCPR) provide a comprehensive understanding of the requisite
standards needed in order for fairness to occur in the trial process. These standards
include the right to legal representation and to be afforded a lawyer when you cannot
afford one; the right to question witness, to be present at the trial; to have access
to the file of the prosecution,and to have the trial conducted in a speedy manner.
Article 14 of the ICCPR coupled with Article 6 of the ECHR have together helped
to develop what constitutes fairness in a trial. It is evident that there are several
principles which have been used by the ECtHR to act as signposts for the various
member states when determining if their domestic practices adhere with the neces-
sary elements of fairness. The signposts which help to guide the member states, are
the equality of arms and the presumption of innocence. Both of these principles will
be dealt with in depth in this thesis. Article 14 (2) and (3) of the ICCPR provides
that:
2. Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to law.
3. In the determination of any criminal charge against him, everyone
shall be entitled to the following minimum guarantees, in full equality:
15
(b) To have adequate time and facilities for the preparation of his defence
and to communicate with counsel of his own choosing;
(d) To be tried in his presence, and to defend himself in person or through
legal assistance of his own choosing; to be informed, if he does not have
legal assistance, of this right; and to have legal assistance assigned to
him, in any case where the interests of justice so require, and without
payment by him in any such case if he does not have sufficient means to
pay for it;
Article 6 of the ECHR provides a very comprehensive protection for the European
citizen for the right to a fair trial. Paragraph 3 of Article 6,and its constituent parts
form the basis from which the principle of equality of arms can be drawn. If any one
of them is infringed, depending on the circumstances of the overall case the ECtHR
may determine that the right to a fair trial has been infringed. This right is an ever
evolving concept, as we will see from the case law, the right to a fair trial now also
extends to the pre trial phase.
Article 6 in its paragraph 1 states that everyone is entitled to a fair and public hear-
ing within a reasonable time by an independent and impartial tribunal established
by law. Judgement shall be pronounced publicly by the press
1. Everyone charged with a criminal offence shall be presumed innocent until
proved guilty according to law.
2. Everyone charged with a criminal offence has the following minimum rights:
a) to be informed promptly, in a language which he understands and in

detail, of the nature and cause of the accusation against him;
b) to have adequate time and the facilities for the preparation of his defence;
c) to defend himself in person or through legal assistance of his own choosing
or, if he has not sufficient means to pay for legal assistance, to be given
it free when the interests of justice so require;
d) to examine or have examined witnesses against him and to obtain the
attendance and examination of witnesses on his behalf under the same
conditions as witnesses against him;
e) to have the free assistance of an interpreter if he cannot understand or
speak the language used in court.
16
Article 6 (3) (b) and (c) further reiterates that member states ought to provide a
framework within indigent defendants can access justice
Article 1 of the ECHR requires contracting States to organise their legal systems
to be compliant with Article 6. There is much debate about when the protection
of Article 6 begins. The case law of the ECtHR would appear to suggest that this
begins from when an official notification of suspicion against the person is given as
in the case of Eckle v. Germany16 . Article 6 is particularly concerned with ensuring
that the applicant is protected against the:
1. absence of lack of standing of the applicant to bring a criminal appeal (Papon
v. France17 )
2. procedural obstacles on access such as time-limits (Hadjianastassiou v. Greece18 )
and court fees (Kreuz v. Poland19 )
3. practical obstacles on access, such as lack of legal aid (Airey v. Ireland20 )
These three possible barriers are what stand between the defendant and the fair
trial. It is these barriers which challenge the overall fairness concept of the trial.
The right of access to a court is a qualified right. The fact that this right is qualified
has enabled member states to justify either limiting or withdrawing funding from
legal aid. This is further evidenced by the fact that Member States have not all be
forthcoming in implementing the Directive 2013/48/EU of the European Parliament
and of the Council of 22 October 2013 on the right of access to a lawyer in criminal
proceedings and in European arrest warrant proceedings, and on the right to have
a third party informed upon deprivation of liberty and to communicate with third
persons and with consular authorities while deprived of liberty.21
“Is justice fair?” is a multifaceted question which requires a definition of justice and
fairness. One overriding factor for ensuring fairness as well as procedural safeguards
is the right to legal counsel as provided for by Article 6 (3) (c) of the ECHR. Member
States are granted wide discretion with determining the quality of legal counsel. This
becomes an important issue when considering the effectiveness of the legal counsel
that the defendant has received because the presence of a lawyer does not ensure
16
Application No. 8130/78, Judgment of 15 July 1982 §§52-53,
17
Application No. 54210/00, Judgment, Strasbourg, 25 July 2002, §§90-100
18
Application No.12945/87, Judgment, Strasbourg, 16 December 1992, §§32-37
19
Application No. 28249/95, Judgment, Strasbourg, 19 June 2001, §52-67
20
Application No. 6289/73, Judgment, Strasbourg, 9 October 1979, §§22-28
21
The United Kingdom, Ireland and Belgium
17
2.2 Fairness
complicity with the fairness requirement of the trial. The lawyer and subsequent
advice must also be effective. This thesis seeks to demonstrate that infringements
of the overall fairness of the trial can occur despite the fulfilment of procedural
requirements because of the ineffectiveness of the legal representation.
Fairness has come to be understood through the guise of several elements. These
elements become more important when considering the rights of the indigent defen-
dant. The right to counsel and for it to be effective counsel form just a few of the
bundle of rights which concern fairness. These are all subsumed under the umbrella
of the principle of equality of arms which has quite a rich history of implementation
in the case law of the ECtHR.
2.2 Fairness
If the legal community is truly concerned with the assessment of the fairness of a
trial then the single most important element that must be satisfied is the criterion
of equality of arms between the defense and the prosecution.
The concept of fairness is not static, not “frozen at any moment of time.”22 and is
constantly evolving. The case law of the ECtHR and the E. U.’s Roadmap show
that Fairness as an expanding concept as these initiatives provide more procedural
safeguards for defendants. For example, at the beginning of the 20th Century it was
still not common place to be awarded a lawyer in the U. K. and now it would be
unthinkable not to have one present.
The Stockholm Programme (which in conjunction with the Roadmap) was an ini-
tiative which ran from 2009-2014. Its purpose was to help establish grounds for
harmonisation of criminal procedure and mutual trust amongst the judiciary. This
programme seeks to draw on the commonalities and to use comparative law as a
means for greater harmonisation and unification.
The Stockholm Programme is just one method being used as a means of redressing
the balance. It has reinforced some rights as well as adding protection to the criminal
trial defendants. The six directives are a means to create a formal framework within
which the member states must act. One of the six directives concerns the right to
22
T. Bingham. The Rule of Law. Penguin Books, 2011.
18
2.2 Fairness
access counsel in criminal proceedings and is important because it reinforces the

significance of legal counsel.23
In attempting to address the issue of fairness, it is vital to consider how the ECtHR
has chosen to interpret this principle. The case law of the ECtHR is indicative
that the court has opted to use the overall fairness of the trial as its benchmark by
which the whole criminal trial can be legitmised. This approach however, does leave
certain aspects of the way in which a trial has been conducted out of scrutiny. This
approach does not consider the principle of the right to a fair trial to have been
infringed so long as it does not affect the overall fair outcome of the trial.
In the case of Salduz v Turkey24 , the ECtHR determined that the lack of access to
a lawyer at the police interrogation stage was enough for the overall fairness of the
trial being violated. Such broad and inclusive terms are illustrative of the fact that
the ECtHR can adapt the concept of overall fairness to the times.
The ECtHR jurisprudence invariably affects the procedural law of the member states
and the way in which they formulate and enshrine the right to a fair trial into their
domestic law(s). The varying implementation of the right to a fair trial is due in
part to the divergin concepts ofwhat a European criminal procedural tradition25 is.
There is the argument that this European criminal procedural tradition has yet to
emerge and this lack of a common procedural tradition in Europe is exploited by two
predominant groups. The first makes a very strong distinction between adversarial
and inquisitorial traditions. The second group, hide their own nationalistic ideals
behind the shield of cultural relativism. Cultural relativism is then used as an excuse
to explain continuous violations of fundamental human rights and then becomes a
mechanism by which horrendous conduct can be resisted, even explained away or
justified.
Summers argues, from the work of Esmein,26 that criminal procedures are distinct
is a myth.
23
Directive 2013/48/eu Of The European Parliament And Of The Council of 22 October 2013
on the right of access to a lawyer in criminal proceedings and in European arrest warrant
proceedings, and on the right to have a third party informed upon deprivation of liberty and
to communicate with third persons and with consular authorities while deprived of liberty.
24
Application No. 36391/02, Judgement, Strasbourg, 27 November 2008
25
S. J Summers. Fair Trials The European Criminal Procedural Tradition and the European Court
of Human Rights. Hart Publishing, 2007.
26
A. Esmein. A History of Continental Criminal Procedure with Special Reference to France. Ed.
by 1913 trans J Simpson Boston Mass Little Brown & Co. Union, NJ, The Lawbook Exchange,
2000.
19
2.2 Fairness
The trend of the trial procedure in the various European countries is

shown rather by common characteristics than by essential differences.27
The French Revolution was the catalyst for other 18th Century European countries28
to re-examine their criminal procedural practices in light of their neighbouring states
as a way to inform and reform their own systems. Summer asserts, that during this
time, there was a strong feeling of European procedural systems converging and
if not converging, were then at least developing according to common principles.29
Jurists were engaging in comparative law methodology in order to find the essence
of a fair trial and were looking at each others systems as a means by which to find
the best model .
The early 19th Century was the beginning of the introduction of fairer trials with a
distinct move away from the Crown and the landed gentry being the law givers30 .
After the enactment of the French Code d’instruction criminelle in 1808, it became
apparent amongst the nineteenth century thinkers that an entirely inquisitorial or
accusatorial system would not be efficient to afford and protect the diverse interests
of the individual involved in the trial and that a far better approach would be, the
establishment of a mixed procedural system. This is expanded within the historic
literature31 ,32 and it can be seen that it was essential to establish a mixed procedural
system33 . The best example of a mixed procedural system is at the ECtHR where
all the different traditions collide and converge.
It is this very issue of access to counsel and the practice of plea bargaining that
highlights the very present tensions in the equality of arms debate giving the message
that some individuals are beyond the right to a lawyer because of their non-status
in society.
“The insight of the latter recognises an underpinning reaction between
the concept of equality of arms and Article 6(3), and introduces the key
27
Summers, Fair Trials The European Criminal Procedural Tradition and the European Court of
Human Rights.
28
Germany, Austria and the United Kingdom
29
Human Rights, p. 23.
30
J. Hostettler. The Politics of Criminal Law Reform in the Nineteenth Century. Chichester, Barry
Rose, 1992, p. 149.
31
F Carrara. Opuscoli do Diritto Criminali. 5th. Vol. ii. Lucca, Tip. Giusti, 1877, p. 372.
32
J. Glaser. Handbuch des Straftprozesses. Leipzig, Duncker & Humbolt, 1883, p. 211.
33
P. Mahoney. “Right to a Fair Trial in Criminal Matters under Article 6 E.C.H.R.” In: JSIL 4.2
(2004), pp. 107–129, p. 372.
20
2.3 Due Process
argument in the thesis: the European Court of Human Rights equates

inequality of arms not with procedural inequality itself, which would be a
dignitarian interpretation, but with procedural inequality that gives rise
to actual or in some circumstances, inevitable prejudice. This argument
predominates the subsequent survey of case-law in which the Court’s
approach to procedural equality is demonstrated and assessed within
the context of the right to challenge and call witness evidence (Article 6
(3)(d)) , the right to adequate time and facilities (Article 6 (3) (b)) and
the right to legal assistance (Article 6 (3) (c)).”34 (own emphasis )
Despite the marked improvement that these early jurists set in motion, there is still
a need for improvement of procedural fair trial rights. It is this flexibility of the
ECtHR in interpretation; implementing the ECHR and the subsequent application
of the judgments by States that leads to problems for accurate conceptualisation
and consistent application of a fair trial.
This prompts the question of the role of due process and the rule of law in protecting
the rights of the indigent.
2.3 Due Process
In his book the Rule of Law, Tom Bingham states that the right to a fair trial is a
“cardinal requirement at the heart of the rule of law.”.35
Lord Diplock aptly observed that no legal system is infallible and that is why safe-
guards, like an independent judiciary, are enshrined in nation states36 . The mutual
goal of the member states is to work towards a systems of trials that are fair. It
is the role of the member states to ensure that principles such as due process are
in place. A government offends the principle of the rule of law when it infringes
upon the fundamental rights of one of its subjects. This is known as a due process
violation. Due process also guarantees that the law and legal proceedings should be
fair within criminal proceedings and not conducted outside of the law. The concept
of due process was first noted in the United Kingdom with the advent of the Magna
34
O. Sidhu. The Concept of Equality of Arms in Criminal Proceedings under Article 6 of the
European Convention on Human Rights. Intersentia, 2014.
35
Bingham, The Rule of Law.
36
R V. Deputy Industrial Injuries Commissioner ex parte Moore (1965) 1QB 450, 488
21
2.3 Due Process
Carta (1215) which established the rule of law in the United Kingdom. The Magna
Carta set out the rules which governed the relationship between the King and his
subjects. The Magna Carta states that:
"No free man shall be seized, or imprisoned . . . except by the lawful
judgment of his peers, or by the law of the land".
The Due process clause and the corresponding principles were exported by England
to its North American colonies and became incorporated into their statutes.
In the U. S., the principle of due process is guaranteed in the the 5th Amendment
and 14th Amendment. They prohibit the government from arbitrarily or unfairly
depriving an individual of their basic constitutional rights such as liberty. The
logical implication of the amendments is that the rigorous nature of due process
procedures must scale accordingly with severity of the level of the deprivation of
liberty. Thus, due process procedures for those charged with a crime would have to
include the right to be represented by counsel throughout the proceedings, the right
to cross-examine witnesses who have testified against him, and the right to a trial by
an impartial jury of his peers. In order for criminal statutes to pass constitutional
muster on these grounds, the law must be sufficiently clear so that citizens would
understand the specific conduct that is prohibited. A law that fails to meet this
standard, because it is too vague, would be deemed unconstitutional. Due process
has both procedural and substantive rights. Substantive law creates, defines and
regulates laws where as procedural law enforces those rights or seeks redress for
their violation. In this context, procedural due process relates to the law itself as to
whether it is clear, fair and does it contain a presumption of innocence.
There are competing concepts and philosophies within fair trial discourse, of what
should be present in order for an individual to be guaranteed a fair hearing. The
expansion of the European Union (E. U.) has resulted in increased pressure to rec-
oncile various different conceptions of a fair trial. This pressure partially originates
from the need to develop a legal system whereby states can be assured that their
nationals will be afforded the guarantees of certain procedural rights in other mem-
ber states. The current challenge before the Council of Europe (CoE) is to realise
a consensus regarding what constitutes a fair trial and to institutionalise modalities
that ensures a consistent application of a fair trial procedures throughout the E. U.
.
The beauty of having different intersecting systems is that there is a rich source of
22
2.3 Due Process
comparative literature to draw from when looking for examples of best practices.
The importance of this nexus and its role in the development of a European jurispru-
dence with regards to fair trial concepts and practices, cannot be underestimated.
The ECtHR is the intersection between the civil and common law systems. The
ECHR defines the minimum rights of the defendant at trial. It is these minimum
rights that the ECtHR then expects the member states to put into practice. Each of
the member states have placed different emphasis and importance on the principles
of the equality of arms and the principle of adversarial trial procedure.37 These
differences are not negative in and of themselves but they do not help in working
towards common standards.
What is understood as due process varies from state to state. Despite these differ-
ences, it is possible to define and identify features that form the basis for the right
to a fair trial. The developing importance of the ECtHR and the ECHR to help
bridge the gaps between the different systems.38 The Rule of Law is not necessar-
ily synonymous with democracy, justice, equality and human rights.39 The scholar
Joseph Raz asserted that in his opinion the reason for this was that, ‘[t]he law may,
for example, institute slavery without violating the rule of law.’4041 The primary role
of the rule of law is to help guide behaviour and the rule of law helps the law to
perform this function.42
One of the most basic principles of the rule of law is the right to have legal counsel.
This paper will also observe that the system of law is now failing indigent defendants
as those processes which were first designed to deal with very serious or organised
crime are now being applied to lesser crimes. The practice of limited and under-
funded legal aid services coupled with the practice of plea bargaining is a growing
trend which is causing great unrest amongst defence lawyers.
Most problems with procedural issues amongst the member states do not concern
37
J. Jackson. “Autonomy and Accuracy in the Development of Fair Trial Rights”. In: UCD Working
Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 09/2009 (2008), pp. 1–
19, p. 8.
38
Human Rights.
39
E. Fox-Decent. “Is The Rule Of Law Really Indifferent To Human Rights?” In: Law Philos. 27
(2008), pp. 533–581, p. 533.
40
Ibid.
41
J. Raz. In: Authority of Law; Essays on Law and Morality. Oxford Clarendon Press, 1979.
Chap. The Rule of Law and Its Virtue, p. 211.
42
Fox-Decent, “Is The Rule Of Law Really Indifferent To Human Rights?”, p. 534.
23
2.3 Due Process
the substantive matter as a precondition of joining the E. U., all the member states
have agreed to protect these minimum standards .
The role of comparative law is at the centre of this debate as it has provided a mecha-
nism by which academics and legislators can observe how similar problems are solved
by other states. There are three criminal justice reform comparative law models:
the Accusatorial (Anglo-American); the inquisitorial (Pre-French Revolution); and
the Mixed (Contemporary European). Those in favour of these classifications, such
as Pierre Legruand, strongly believe that there are real demarcations which separate
legal systems. There are unique historical and cultural reasons as to why certain
legal systems have developed the subsequent classification but comparative law has
become a tool, ironically, for arguing for separation rather than uniformity of legal
systems despite there being more similarities between modern legal systems.
The right to legal counsel forms an integral part of the right to a fair trial. The
ECtHR has sent a clear message that if the right to legal counsel is infringed it may
result in a breach of Article 6 . At the international level the Basic Principles on
the Role of Lawyers principle 1, provides that;
“[a]ll persons are entitled to call upon the assistance of a lawyer of their
choice to protect and establish their rights and to defend them in all
stages of criminal proceedings.”43
These Basic Principles are non binding but they provide a helpful guide for deter-
mining what is considered to constitute a fair trial. The Principles place a great em-
phasis on the securing of access to counsel at the pre-trial stage. Principle 744 states
that governments should ensure that all persons are provided with a lawyer within
48 hours from arrest or detention. This issue has been hotly disputed amongst
the various Member States where countries such as the United Kingdom (U. K.)
have extended the periods whereby certain individuals, such as terrorists, could be
detained for longer without the presence of a lawyer.
The basic principles also reaffirm that if an individual cannot afford their own counsel
then the relevant authorities should provide a lawyer free of charge as long as it is
in the interests of justice.
43
Basic Principles on the Role of Lawyers, adopted by the Eight United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27-September 7,
1990
44
Basic Principles on the Role of Lawyers, adopted by the Eight United Nations Congress on the
Prevention of Crime and the Treatment of Offenders, Havana, Cuba, August 27-September 7,
1990t. T
24
2.3 Due Process
It is a generally agreed principle that when counsel is awarded to an individual who

cannot afford to pay for legal assistance themselves the domestic court should take
steps to ensure that that legal counsel is effective.
It must be recognised that the nature of the prosecution’s case is that the evidence
that they produce will be damaging to the defense’s case. The defense must be
given an equal opportunity to rebut the evidence against them. The ability to
rebut, causes the underlying problem as it becomes necessary to have a lawyer who
can navigate the disclosure process and it is more difficult to prepare a defense when
the nature of the allegations are unknown.
It is also important to know which crime control model is operating within a partic-
ular country as this will inform the approach which is taken towards the defendant’s
fair trial rights.
2.3.1 Packer’s Criminal procedure models
Herbert L. Packer illustrates, that even within a functional system, that there are
many competing goals. These competing goals, are at odds with each other, and
fall within two camps the crime control model and the due process model.45
The crime control model is described as the “assembly line”. This model is concerned
with the repression of criminal conduct.46 This model is overtly concerned with the
system’s ability to apprehend, convict and dispose of a high proportion of criminal
offenders .47 The focus of this process is the securing of the guilty plea. As such the
system becomes characterised by an administrative fact finding process leading to
the exoneration of the suspect or to the entry of a guilty plea.
The due process model on the contrary focuses on the adversarial aspect of the trial
The perusal of the guilty verdict is an affront to this model. This model has been
characterised as an obstacle course. The reason for this description is that at every
stage of the process there are impediments designed to protect the accused defendant
from progressing to the next stage. The due process model sees the crime control
model as employing short cuts in the name of efficiency to get around reliability.
At the heart of the due process model is the question of equality. Equality requests
45
M. M. Feeley. “Two Models of the Criminal Justice System: An Organizational Perspective”. In:
Law & Soc’y Rev. 7 (1973), pp. 407–426, p. 414.
46
Packer, “Two Models Of The Criminal Process”, p. 10.
47
Ibid., p. 10.
25
2.3 Due Process
that the process between the respective parties be one such, “...as to minimize the
discrimination rather than a mere series of post hoc determinations of discrimination
be made or makeable.”48
Within the Due Process Model there is the pervasive reliance upon the fact that in
order for the rules and sanction of the criminal procedure to be appropriately applied
the representation of counsel is a necessity. Access to counsel must be available at
all the different stages of the trial .49 It is over the issue of access to counsel that the
two model’s begin to diverge, the former considers it to be a mere luxury whereas
the latter views access to counsel as being a crucial part of the process.
The supporters of the due process model’s critique of the crime control is that it is
rather concerned with the plea than with the trial as the, “... dominant mode of
guilt determination.”50
“... the touchstone of the due process model is “legal guilt”, a determi-
nation which must never be sacrificed to mere expediency or result.”51
Packer’s two models of crime control have helped to identify the competing interests
of society’s interests in convicting the guilty and the rights of the criminal defendant.
The problem presents itself in the question is there a way in which fewer innocents
could be convicted without the acquittal of too many guilty?
This is the question that drives the search for the next efficient system to answer it.
Competing theorists have all attempted to find the best model but as of yet there
is not universal agreement.
Keith A. Findley states that this is the wrong question. He uses the constitution
of the U.S. as an example stating that it protects the innocent to the highest or-
der.52 This conceptualisation, however, is misguided because even though the U. S.
constitution may provide protection, creative ways have sprung up which have found
a way of getting around this protection such as the practice of plea bargaining. This
is not a phenomenon that is unique to the U. S. but also a creative practice which
occurs in the member states. Packer also recognised this discrepancy named as the
big gaps between the “Is” and “Ought”.53 He stated that,
48
49
Ibid., p. 21.
50
Ibid., p. 47.
51
R. L. Hoglar. “Conrad, Kafka and the Criminal Justice System”. In: 3 J. Contemp. L. 75 (1977).
52
K. A. Findley. “Towards a new paradigm of criminal justice: How the Innocence Movement
Merges Crime Control and Due Process”. In: Tex. Tech L. Rev. 41 (2009), pp. 1–42.
53
Packer, “Two Models Of The Criminal Process”.
26
2.3 Due Process
“We learn that very few people get adequate legal representation in the
criminal process; we are simultaneously told that the Constitution re-
quires people to be afforded adequate legal representation in the criminal
process.”54
This illustrates that there are significant gaps between the theoretical and practical
legal practice. This is a disconnect which resonates throughout this paper. Packer
astutely observes that, “The kind of criminal procedure we have depends importantly
on certain value choices that are reflected, explicitly or implicitly, in its habitual
functioning.”55
It is these value choices which illustrate the definition and emphasis that a particular
society chooses to place of their criminal procedure rules.
The quest for the ideal criminal model also informs how one perceives of the purpose
of the criminal sanction.
The practice of plea bargaining has an impact upon the administration of justice.
It is evident that all parties to the proceedings have an administrative interest
in saving time, effort, “getting a better and the actors all usually emphasize in
deal" for the accused.56 This practice runs the risk of removing the safeguard of the
presumption of innocence and replacing it instead with a “presumption of guilt”.57
This shift in the presumption does not necessarily impede upon the defendant’s
quality of representation, if purely discussing the quality and access to counsel.58
Packer recognised that the plea plays a fundamental role in that it is the plea rather
than the trial which is dominant in determining the factor of guilt in criminal trials.59
The criminal process should be able to provide clarity as to what rules should be
applied and how they ought to be implemented.60 Due process places the emphasis
upon having access to legal counsel, in order to ensure that the rules are implemented
fairly.
Despite due process being herald as the protector of human rights (more than the
crime control model is) it can
54
55
Ibid., p. 5.
56
Feeley, “Two Models of the Criminal Justice System: An Organizational Perspective”.
57
Ibid.
58
J. H. Skolnick. Justice Without Trial: Law Enforcement in Democratic Society. Quid Pro, LLC,
2011.
59
60
Ibid., p. 21.
27
2.3 Due Process
"function largely as hollow symbols of fairness or at best as luxuries or reserves to

be called upon only in big, intense, or particularly difficult cases."61
This then presents us with a situation whereby due process, in reality, is a thin,
shiny veneer that dresses up the ugly reality of crime control.62
The due process model has not alleviated the growing numbers of the prison pop-
ulations and instead a non-punitive model which focuses on the elements, role and
rights of the victims is required. In the 60s the rights of the victims were taken to
be subsumed within the correct workings of the crime control model. Roach posits
adopting a non-punitive model whereby victims and offenders are able to, in his
“circle model”, reduce the pain “of both victimization and punishment.”63 In this
model, the emphasis is placed upon the using and workings of restorative justice.
This model is dependent upon the offender participating voluntarily as well as ac-
cepting responsibility for their actions. In doing so, the need for the due process
model of proof beyond all reasonable doubt is made redundant.64
Roach suggests that the non-punitive model shows that only certain subsections of
society are committing crimes against either their own communities or against the
whole of society at large. It would seem that the optimum working of a restorative
justice model needs “offenders and the victims who often come from similar pop-
ulations and that these populations are disproportionately exposed to harm other
than crime.”65 Roach critiques Packer’s work as Packer’s conceptualisations limits
the creative process of re-imaging criminal models. He states that Packer
“conceived of rights in a traditional liberal manner as a negative check
on government. He did not imagine rights as a positive guarantee of se-
curity or equality or conceive the criminal sanction as a remedy required
to respect the rights of victims and potential victims of crime.”66
Packer also wrongly assumed that the nature of most criminal justice systems are
adversarial.
In complete contrast to both Packer and Roach is Malcolm M. Feeley approach to
61
K. Roach. “Four Models of the Criminal Process”. In: J. Crim. L. & Criminology 89 Issue 2
Winter (1999), pp. 671–716.
62
Ibid.
63
Ibid.
64
Ibid., p. 710.
65
Ibid., p. 709.
66
Ibid., p. 692.
28
2.3 Due Process
the criminal justice systems from an administrative angle .67 He created a “rational-
goal model” whereby the means and goals of criminal justice are merged to form the
goal of achieving justice.
These concurrent approaches of Weber and Feeley are challenged on the basis that
if alterations are made to the criminal justice system then certain elements will
inevitably be undercut. One such area is the issue of equality between the parties, as
any modification of the well-thought out process as both Feeley and Weber conceive
of it would inevitably result in the undercutting of the power of the defence. This
would result in the destruction of the fundamental rule of, “balanced advantage”
between the parties.68
The fact that legal theory and practice do not correlate is not surprising considering
the large volume of academic discussion regarding the substance of how a criminal
justice system ought to look. The academic literature is indicative of the fact that
a consensus is yet to be reached on what best forms a criminal trial.
The critical question which needs to be answered is “What is the purpose and role of
a criminal trial?” Ultimately, the criminal trial is where social problems and issues
are confronted in a formal solution by the courts. The role of criminal justice is to
mediate the conflicts and intersections that arise between State, Community and
the Individual, the three powerful social orders.
The division of the criminal trial into three parts has its roots historically in criminal
procedures where the popular justice, which is the common sense of the people, is
represented. The adversarial role, which emphasises the individual, gives priority
to the rights bearer. The inquisitorial aspect of a trial focuses upon the verified
confession. The decision making process needs a mixture of all three components
where all voices must be equally represented and heard.
The inquisitorial system is characterised by a hierarchical, continuous and bureau-
cratic process. The adversarial system is characterised by the defendant being an
active and rights-bearer participant at all stages of the trial process. Additionally,
an adversarial methodology looks to prevent the State from distorting a free testi-
mony; to prevent the State from using power to create an unfair trial and to see the
defendant as an active individual.
This distinction has become characterised by a struggle for rights which is being
67
Feeley, “Two Models of the Criminal Justice System: An Organizational Perspective”.
68
Ibid., p. 411.
29
2.4 The historical origins of the criminal procedural process
fought not only in Europe but also in the U. S. The competing demands of efficiency
and justice are currently in conflict with each other and are pulling the E. U. in
different directions creating gaps through which the indigent are falling.
The E. U. has recognised that there are problems with the lack of coherency when
it comes to the application and usage of the plea bargaining mechanism.
The increasing need for uniformity and efficiency is placing pressures upon the pros-
ecution to reach an agreement whereby there is no trial. The prosecution practice of
avoiding the trial in the name of efficiency, most controversially occurs in the form
of plea bargaining.
2.4 The historical origins of the criminal procedural

process
It is important to realise that, despite the varying practices of adhering to human

rights standards, there is not a huge divergence in terms of procedural criminal
law amongst the member states. The underlying problems are not necessarily the
theoretical conceptions of criminal procedural law but rather the importance they
place upon protecting basic standards of human rights.
Summers claims that it is possible to talk about a common European criminal
procedural system. She notes that amongst all of the jurists writing at that time
that there was,
“(...) a distinct sense in many of the works of this time that the European
procedural systems were, if not converging, then developing according to
common principles.”69
It was also during this time that there was a shift in the way the defendant was
viewed in the trial process. Around the time of the Enlightenment and the reforms
of liberal philosophers , the citizen was re-conceptualised as a participant in the
proceedings rather than a passive object of the investigation.70 In this way, the em-
phasis upon the fairness of the trial was refocused with a shift towards individualism
and the focus of the human rights protection of the individual.
69
70
Ibid.
30
Summers points out it was the institutional guarantees that secured whether a trial
would be considered to be fair but this resulted in the practice of the defendant not
being secured a lawyer and thus an active role in the trial. The previous practice
of the judge being the defense counsel meant that it was not seen that a lawyer
ought to be appointed in that particular situation.71 These discussed reforms placed
a greater weighting upon the impartiality of the judge over the appointment of legal
counsel . So, it was the independence and impartiality of the judiciary which was
viewed as being paramount.
Summers noted that prosecuting, defending and investigating, were the roles tradi-
tional performed by the judiciary, diverged into three distinct roles with the rela-
tionship between the judiciary and the prosecution shifting to interactions between
the prosecution and the defence.
“The evolution of the defence’s role was thus contingent across Europe
on the definition of judicial impartiality. (...) Crucially it enabled, as
part of the accusatorial trinity, the construction of a system of criminal
proceedings that could be presented as both efficient and fair”72
Alongside the development of the immediate and oral hearing also developed the
principle that the defendant would have the right to be represented by his or her
lawyer at all stages of the trial procedure.73
2.4.0.1 The historical development in Europe of the rights of the defence
Voltaire notes that within English and Roman systems, the defendant was awarded
the opportunity to question witnesses; to be present in person and to reply to
questions. If they could not do so themselves, they were to be afforded a lawyer
who would assist them in the making of their case.74 The rights of the defendant also
changed considerably with the development of the open and pubic hearing and in
the wake of enlightenment movements the structural emphasis of the trial changed
towards including the rights of the defendant. Defence rights became synonymous
with fairness. Two Centuries later, there has been a shift to erode the elements which
71
Human Rights.
72
Ibid., p. 38.
73
Ibid.
74
Ibid.
31
create a fair trial. New legal approaches which were adopted were not necessarily
new concepts but rather a returning to ways of old.75
Hélie stated that the right to be heard is a principle of natural justice76 and the
development of the open trial also had a knock-on effect upon laying the foundations
for the active defendant’s participation in the criminal trial process. Vargha stated
that the presence of the accused and their counsel at the trial is essential in order
to guarantee,
“ (...) the defence the opportunity to observe and to influence the
taking and hearing of evidence.”77
Summers shows that the reforms that occurred in the 19th Century highlight that
there was, and could still be today, a common approach as well common elements to
all criminal scholars in the reforming of the system.78 These procedural reforms fo-
cused on rectifying the institutional discrepancies in power between the prosecution
and defence and a reasserting of the principle of equality of arms.79
“Only through the assistance of counsel would those accused of criminal
offences be able to engage with these vitally important legal formalities
and make proper use of the guarantees afforded them in presenting their
defence.”80
The right to be heard is a recognition that the defendant should be considered an
active participant in their own trial. The Criminal Evidence Act 1898 of the U. K.
included the right of the accused to defend oneself in person. J. F. Stephen was
a strong proponent for the inclusion of the defendant as they were the individual,
who when questioned, would be able to give the best evidence concerning the events
regarding the alleged incident.81 J. K. Stephen’s also identified the need for the right
to have counsel.
75
Human Rights.
76
F. Hélie. Traité de l’instruction criminelle: ou théorie du Code d’instruction criminelle. Traité
de l’instruction criminelle: ou théorie du Code d’instruction criminelle v. 5. H. Plon, 1867. url:
http://books.google.hu/books?id=lGcOAAAAYAAJ.
77
J Vargha. Die Verteidigung in Strafsachen. Vienna, Manz’sche k k Hof-Verlag und Univ Buch-
handlung, 1879.
78
Human Rights.
79
Ibid.
80
Ibid.
81
J. F. Stephen. A History of the Criminal Law of England. Macmillian, 1883.
32
“It must be remembered that most persons accused of crime are poor,
stupid and helpless. (...) when prisoners are defended by counsel the
defence is often extremely imperfect and consists rather of what occurs at
that moment to the solicitor and to counsel than of what the man himself
has to say if he knew how to say it. When a prisoner is undefended his
position is often pitiable, even if he has a good case. (...) He is utterly
unaccustomed to sustained attention or systematic thought, and it often
appears to me as if the proceedings on a trial, which to an experienced
person appear plain and simple, must pass before the eyes and mind of
the prisoner like a dream he cannot grasp.” (emphasis my own)82
These criminal proceedings reforms that occurred in England arose from a need for
a re-conceptualisation of the role of the defence in the trial due to the the impartial
judiciary and the more active engagement of the prosecution in the trial proceedings,
rather than a perceived change in the the rights of the defence.83
The giving of evidence was best heard in the institutional format of a trial. Hence the
role of the defence and the right to counsel became more prominent. This coincided
with the development of the importance of the principle of judicial impartiality with
the active role of the prosecution mounting and bringing the case. This resulted in
the realisation that is was necessary for the defendant to be given an equal chance
at a mounting their defence. In these circumstances, it meant that the defendant
needed to be awarded counsel in order to be able to effectively mount a defence.
In Germany, the ability to appoint counsel was held in such high esteem that it was
incorporated into the Federal Code of Criminal Procedure in 1877 para 246 of the
German StPO of 1877. This legal stance was further endorsed by the philosopher
Vargha who stated that the presence of as well as the assistance of counsel was the
mechanism by which the accused could be properly considered to be a party to the
process.84 Vargha states that without a lawyer, the defendant is effectively excluded
and has no say in the proceedings whatsoever. It was recognised that the assistance
of counsel was a fundamental principle to the overall procedural law and a trial
could not proceed in the absence of the defendant being represented.
The approach of the U. K. to the right to counsel arose from fact that the prose-
82
Stephen, A History of the Criminal Law of England, p. 442.
83
Human Rights.
84
Ibid.
33
cution was being represented by solicitors and so to redress this imbalance counsel
was allowed for the unaided defendant. A legislative attempt, in the form of the
Prisoner’s Counsel Act 1836, was made in the U. K. to rectify the fact that large
numbers of prisoners were not allowed counsel. It was observed by Bentley who
writes that this Act did little to make this right a reality for the prisoners,
“Whatever their legal rights, in practice they were denied counsel by
their poverty.”85
The development of legal aid in the U. K. occurred only after the institutional
reforms took place and of the criminal procedure as well as the introduction of
counsel for the prosecution.
It is now recognised that the pre-trial investigative stage of the proceedings has an
inevitable knock on effect on the overall fairness of the trial. Despite this situation
the historical development of the rights of the accused to have a counsel present
at the investigative stage shows that it was not deemed as being necessary in the
19th Century U. K., Germany and France. The institutional guarantees included
within the trial was an attempt to make the proceedings more efficient and that
the presence of the counsel would undermine the overall effectiveness of the trial.
Unfortunately,this is a view which is still held by some within Europe.
“Dissatisfaction with the nature of the investigation phase can there-
fore be seen as being based, not on the belief that it should have been
public and oral, but rather on the knowledge that the activities of the
investigation phase were of considerable importance and were providing
the authorities with the opportunity to bypass the strict institutional
guarantees afforded by the trial.”86
This is the plea bargaining situation in a nutshell. It is somewhat disappointing to
realise that there has not been much progress made concerning this problem at the
pre trial stage.
This pre trial practice of the defendant being kept in the dark about matters con-
cerning the material evidence against them was still prevalent throughout the 19th
Century. Despite the recognition that it was wrong to conduct the pre trial investi-
gations in this way and the fact that treatment of the accused was considered not
85
D. Bentley. English Criminal Justice in the Nineteenth Century. Hambledon Press, 1998.
86
Human Rights.
34
2.5 A Theory of Justice
to be correct.
Summers states that;
“If fair proceedings are taken to be those in which those accused of
criminal offences have the opportunity to know of and challenge the
evidence against them, as well as to present their own evidence, then
fairness depends not just on their ability to exercise these rights, but
also on the context in which they can exercise them.”87
The wording of the right to counsel in the ECHR in Article 6 (3) (c) states that
the accused has “the right to defend himself in person or through legal assistance
of his choosing.” Considerable attention has been paid to the conditional ’o’r in the
sentence as it could be interpreted that there is a right to counsel or the right not
to have counsel. The ECtHR case law shows that under the ECHR, the state would
be obliged to provide counsel even if the accused would prefer to have none.88
If the presence of the defence lawyer was deemed to be so vitally important to
ensuring adhesion of the institutional structural fairness of the process, what has
gone so horribly wrong in the present practice of European criminal procedure?
From the theoretical discussions we can see that the defence lawyer is the guarantor,
adhesive of the institutional structural fairness of the process. It has taken the
ECtHR until Salduz v Turkey89 to enshrine this principle.
Interwoven with the recognition of the importance of the lawyer to the trial is a
theory of justice.
What is a just society?90 The answer to this question forms the central kernel to
our approaches to a trial. In searching for the answer, the transcendental and the
comparative approaches can be adopted.91
87
88
S. Trechsel. “The Significance of International Human Rights for Criminal Procedure”. In: N,
T, U, L, Rev, 6.1 (2011), p. 177.
89
Application No. 36391/02, Judgment, Strasbourg, 27 November 2008
90
J. Rawls. A Theory of Justice. Oxford University Press, 2000.
91
A. Sen. “What Do We Want from a Theory of Justice?” In: The Journal of Philosophy 103 (5
2006), pp. 215–238.
35
The transcendental approach, to understanding justice, identifies the principles

which help to ensure that a society is just. According to Rawls, this institutional
structure would then lead to further decisions in the form of legislation.92 Sen unlike
Summers observes that institutional changes do not automatically make a society
more just as other institutional transgression could still remain.93 This can be seen
with institutional criminal procedure reforms that the Stockholm programme has
sought to implement in the E. U. member states. It is apparent, despite the im-
plementation of this package of directives, that the institutional transgressions still
remain and do not move them automatically into the just category.
The comparative approach, is particularly useful when seeking to find different ways
of ’advancing justice in society’94 . The comparative approach ventures where the
transcendental approach cannot go as it is able to, ’address questions about ad-
vancing justice and compare alternative proposals for having a more just society’,
without having to make the theoretical leap to a perfectly ordered and just soci-
ety.95 This approach adopts the comparative approach to remedying injustices. The
methods diverge as the comparative approach investigates the ways and means for
instigating change rather than finding a perfect societal arrangement which would
implement the required changes.
Transcendentalists96 argue that there is no place for a comparative discourse as it
leads to unhelpful conversations regarding the best way to have social arrangements
and does not help with comparative assessments of justice.97 Sen believes that the
quest for transcendental justice is important but does not help to inform about the
comparative merits of the different global social arrangements.
It is still important to identify the best alternative for justice when ranking the
different systems of justice. Sen argues that if a comparative assessment can be
made, then it must also be possible to identify the best option.
’the comparative ranking of the different alternatives must inter alia also
be able to identify the answer to the transcendental question regarding
a perfectly just society.’98
92
Sen, “What Do We Want from a Theory of Justice?”
93
Ibid.
94
Ibid., p. 218.
95
Ibid., p. 218.
96
Ibid., p. 218.
97
Ibid.
98
Ibid.
36
It is not necessarily a negative that there is no answer to what the just society
ought to be. There is universal agreement that injustices still pervade in our soci-
eties. The inability to provide a conclusive answer does not prevent us from striving
towards ideals of justice.99 Sen notes that this comparative exercise can be particu-
larly helpful irrespective of the ability to fully answer the transcendental just society
question.100
The transcendental question raises the related issue of how does society generate the
institutional structures in order to be just. This picture of a perfect and just society
requires a vast number of institutional guarantees. These would be a necessity
but they either simply do not exist or are either ineffective and/or corrupt. Sen
sees the discussions about the absence of institutional guarantees and subsequent
barriers to justice as a good exercise in comparative approaches to justice. It helps
to explain the legal motivations and methods of particular countries but it is not
very constructive with the advancement and solution of the transcendental question.
Sen states that it is possibly more fruitful to take on comparative questions of
justice rather than focus on the just society question. The theory of justice needs to
move outside of its confines of the transcendental contractarian theory of justice in
order for progress to occur. Sen says that there is no shame in admitting that this
new approach may result in some incompleteness but that comparative aspects will
invariably show the gaps and that inviting in outside voices to the problems they
may well be able to cast a new light on a previously unsolvable and deeply unjust
situation.
Critics of both Sen and Rawls and their theories of justice discussions have em-
phasised that if a comparative approach is adopted, there is hope for a general
consensus of justice. The big distinction between Rawls and Sen theories of justice
is that Rawls is predominantly concerned with ensuring that the background pro-
cesses are fair and just. A fair and just system does not mean that the automatic
outcome is legitimised. Whereas Sen cares more about the consequences of said
decisions rather than the institutional background.
Rawls’ theory of justice has dominated the methodological approaches to conceiving
of an ideally just society. Rawls’ political philosophy is referred by Sen as “tran-
scendental institutionalism”.101 Sen argues for a more pratically-orientated approach
99
Sen, “What Do We Want from a Theory of Justice?”
100
Ibid.
101
L. Valentini. “A Paradigm Shift in Theorizing about Justice? A Critique of Sen”. In: CSSJ
37
to justice which would take the form of being like “realization-focused comparison.”
Valentini, however, is not convinced that such a paradigm shift in the conceptions
of justice is truly warranted. The first key principle of Rawls’ theory of justice is
the framing of the right to legal counsel in its wider context of fundamental rights
necessary for a truly just society.
1. Each person has an equal claim to a fully adequate scheme of equal
basic rights and liberties, which scheme is compatible with the same
scheme for all; and in this scheme the equal political liberties, and only
those liberties are to be guaranteed their fair value.102
The major failing of transcendental institutionalism is that it neglects to deliver
conceptual tools which can help to advance real justice in the world.103 The con-
structs and workings of a just society are not required in order to know that the lack
of legal counsel; plea bargaining practices and the principle of the equality of arms
erosions infringe defendants right to justice. A society is deemed just by ascertaining
whether certain criteria are met and a full picture is not required. Valetntini asserts
that Rawls’ theory provides a good foundation for determining infringed fundamen-
tal liberties, on the basis of the basic liberties vis-a-vis fair equality of opportunity
and the difference principle, and this allows, on a comparative scale, to determine
which societies are more just than others.104 Rawls’s theory is incomplete and as
such requires some fine tuning in order for it to be able to deliver the requirements
for a comparative theory of justice. Rawls’ view is that principles of justice can
be applied only in certain social relations and these cannot necessarily be success-
fully exported to the global stage. Sen believes this to be the fundamental flaw
within Rawls’ model as it cannot be applied beyond the domestic level. Despite
the criticisms mounted against this theory, Rawls has always maintained that there
is importance in being able to identify constitutional essentials and fundamental
principles of justices which a ’reasonably just society should satisfy’.105
’A theory of justice has to say something substantive about what justice
requires in order to be of any interest in the first place.’106
Unless an understanding of justice that is relevant to the local communities is
Working Paper Series SJ011 (2010), pp. 2–14.
102
Valentini, “A Paradigm Shift in Theorizing about Justice? A Critique of Sen”.
103
Ibid.
104
Ibid.
105
Ibid.
106
Ibid.
38
2.6 Rights for all?
achieved then the leap to a global protection of justice for all will be impossible.
This thesis adopts a comparative approach to finding justice by examining the sys-
tems of four E. U. member states (Germany, Italy, U. K. and Hungary); one seeking
accession (Serbia) and the U. S. as the external reference. The U. S. is particularly
influential and has great interest in exporting its version of justice to Europe. These
countries have been chosen so as to illustrate how different countries have sought to
implement theories of justice which are exclusive of the indigent defendant.
2.6 Rights for all?
These debates on fairness, access to legal counsel, and justice bring us to the question
are there really rights for all.
H. L. A. Hart’s work focuses upon addressing the issue of what is a ’right’; the moral
justifications for interfering with that right and the ’right’ to a fair trial.107 Rights
are classified as special and general. These categories are based upon the premise
that all men have the right to be treated equally free.108
The real problem hiding behind the existence of the theories of justice is,
’the implementation and administration of justice requires resources’109 .
This is a sensitive political issue which is felt in the current climate of economic
recession. The limited resources available for justice are felt most amongst the
indigent of society. This is most evident in situations where the right to a fair
trial guarantees are being eroded in favour of expediting the legal process. It is
in these situations that the conceptions of a theory of justice are failing to reach
those in need. Theories of justice do nothing to help the realities facing the indigent
defendant as they are generally unattainable and of little or no practical or relevant
consequence.
The ability to provide access to justice are two interconnected concepts. The levels
of justice provided by institutional structures of justice are limited by the legal
107
H. L. A. Hart. “Are There Any Natural Rights?” In: Philos. Rev. 64.2 (1955), pp. 175–191.
108
Ibid.
109
A. Tucker. “Scarce Justice: The Accuracy, Scope, And Depth Of Justice”. In: Polit. Philos. &
Econ. 11.1 (2012), pp. 76–96.
39
2.6 Rights for all?
infrastructure. These limits are grouped by Tucker into three and allocated the
following names accuracy, depth and scope110 . The accuracy of justice is when
guilty criminals should be convicted and innocents should be acquitted,
its accuracy is measured by the margins of error in the legal system111
The accuracy of justice is called into question when considering the provision of legal
aid for the indigent defendant and the practice of plea bargaining.
Tucker investigated the depth of justice by considering the difference between social
norms and the theory or principles of justice. The larger the gap in the depth of
justices means that it is normally more expensive to bridge the difference and to
enforce the implementation.
Tucker strongly asserts that,
“All possible justice must come in three dimensions: scope, depth, and
accuracy. Without these three dimensions, principles of justice are dis-
embodied ideas floating in an ephemeral universe devoid of material ex-
istence. ’Justice’ without scope does not apply to anybody. ’Justice’
without depth is descriptive rather than normative. ’Justice’ without
accuracy is arbitrary.”112
The accuracy, depth and scope of Justice will be a major theme developed within
this thesis with a special focus upon identifying the nuanced problems of access
to justice for the indigent defendant with particular reference to the relationship
dynamics in the practice of plea bargaining.
Tucker infers that securing justice is a give and take relationship limited by the
scarcity of resources. The resulting development of theories of justice will invariably
be dependant upon the different societal,historical and cultural contexts.
In an ideal justice system, the due and appeal process mechanisms would increase
the accuracy of justice but the complete elimination of the margin of errors is not
possible.113 These safeguards are removed when a system of appeals, one of the
fundamental pillars of the due process process, is bartered away. The margins of
error principle tries to ensure that the innocent are not convicted so that society is
110
Ibid.
111
Tucker, “Scarce Justice: The Accuracy, Scope, And Depth Of Justice”.
112
Ibid.
113
Ibid.
40
2.6 Rights for all?
not financially responsible for imprisonment costs and any extra substantial costs of
rectifying mistakes.
This thesis will show that the indigent of society are the ones who suffer the most
when it comes to miscarriages of justice and the judicial discrepancies that cause
them to be falsely imprisoned. Gooding argues that in times of economic recession
a society suffers and consequently there is a increase in the need for welfare. The
State ought to be more generous with.
’increasing the margins of error of distributive justice in the direction
of generosity because the social cost of error is higher during economic
downturns, when poor people suffer more from denial of welfare.’114 (emphasis
own)
In order to reduce errors in convicting the innocent the, common law has shifted
the margin of error in the direction of acquitting the guilty. This supports the
hypothesis that in retributive justice, the higher the standard of proof results in a
higher ratio of erroneous convictions to erroneous acquittals.115 ,116
Variation in social standards and circumstances that affect the trial as alternative
models of justice are being used to process defendants. These alternative methods
are now being subsumed within the legal regulation with varying levels of success
and are challenging the conceptions of justice and especially the rhetoric of access
to justice for all.
Plea bargaining raises several questions which impact upon the fair trial of the defen-
dant which include, the quality of representation; the ability to question witnesses;
and the issue of the presumption of innocence of the defendant.
C. o. E member states have continued to make substantive law provisions without
worrying about invoking the ECHR at every junction. Member states still have a
wide discretion to create criminal offences which are compatible with the ECHR and
their subsequent legal limits.117 Within the U. K., there is no general right that the
substantive law should be fair but it just needs to recognise the principles of the
114
115
M. DeKay. “The difference between Blackstone-like error ratios and probalistic standards of
proof.” In: Law Soc. Inq. 21 (1996), p. 95.
116
L. Laudan. Truth, Error and Criminal Law: An Essay in Legal Epistemology. Cambridge Uni-
versity Press, 2006.
117
V. Tadros. “Rethinking the presumption of innocence”. In: Crim. L. & Philos 1 (2007), pp. 193–
213.
41
2.6 Rights for all?
ECHR.118 It is important to consider the jurisprudence developed by the ECtHR

concerning the right to a fair trial as
’There is little point in protecting procedural rights of defendants in the
absence of fair substantive criminal law.’119
The presumption of innocence is built on the belief that it is better that ten guilty
people go free than having one innocent wrongfully convicted. Tadros argues that
this presumption should be viewed as a procedural right and as such does not re-
quire substantive law harmonisation rather that the member states ensure that the
criminal convictions are only within the purpose of the legislation. The E. U. has
struggled with the concept of within the ’purpose of the legislation’ as it is hard
to support when it comes to plea bargain convictions because the discretion of the
prosecutor is the dominant factor in the convictions which can be meted out even
though plea bargaining practices may be allowed for and legislated. There is a slid-
ing scale of punishment resulting in a lack of certainty of treatment of the defendant.
The presumption of innocence and plea bargaining come into conflict because the
presumption of innocence
’ought to protect individuals from being convicted where their conduct
is not the intended target of the offence created.’120
There are two theories of the presumption of innocence. The classical model only
protects a person from being convicted when it has not been proved beyond a rea-
sonable doubt that their conduct falls within the particular criminal offence. Moral
theory stipulates that a person is protected, innocence presumed, when their con-
duct is of a kind that ought not to be considered criminal.121 Tadros believes that
Article 6(2) when interpreted by the courts should,
’consider the conduct that parliament was intending to control by cre-
ation of the offence.’122
There is also the question of who should bear the evidential burden of proof. If it is
the defence’s responsibility, does this interfere with the presumption of innocence?
There are two main grievances aired in many appeals of improper plea bargains.
The first is that the counsel did not correctly and fully inform the defendant about
118
Ibid.
119
Tadros, “Rethinking the presumption of innocence”, p. 194.
120
Ibid.
121
Ibid.
122
Ibid., p. 198.
42
2.6 Rights for all?
the implications of accepting or rejecting the plea. The second complaint is that
the defendant was coerced into pleading guilty to something whilst they claim they
are innocent. The role of the legislator and their interpretation of the presumption
of innocence is very important with respect to plea bargaining. Within the context
of the plea bargaining relationship, the presumption of innocence is frequently cir-
cumvented and the defendant is tasked with ensuring their own innocence often to
a much higher extent than in other situations.
In what circumstances could the interference with the presumption of innocence be
permissible? Human rights are frequently interfered with on the basis of necessity
in a democratic state especially if the right is an unqualified one such as Article 6
(2).
If it is only permissible to interfere with the presumption of innocence in a demo-
cratic society then it would imply that no democratic society could function without
the interference with this presumption of innocence.123
Within the European context, member states violations of human rights standards
are not in isolation and they are responsible and accountable to the wider European
community for the violations of these rights. The margin of appreciation provides
a degree of leeway with the application of these human rights standards. Member
states should not be allowed to use this leeway as a shield from behind which they
can hide from their responsibilities. Tadros argues that the presumption of innocence
should be viewed as being a human right as it provides a threshold below which no
member state should be allowed to fall.
This standpoint then needs to be evaluated in the context if in similar situations the
interference would also be considered to be proportionate. Also, if the presumption
of innocence is to be conceived of as a human right, then it is a Europe-wide right
for E. U. citizens and as such should not be breached. The only exception would be
a unilateral breach by all of the member states.124
It is often asserted that the criminal trial serves the interests of the community by
bringing to justice those who have committed the offence. Mechanisms, however,
such as the plea bargain and the interference with the presumption of innocence only
work to further degrade the collective interest of the community in having justice
served. At a European level, the interference with the presumption of innocence
123
Tadros, “Rethinking the presumption of innocence”.
124
Ibid.
43
2.6 Rights for all?
should not be warranted if and when it would not be reasonable in some other
member state of the E. U. and they would not warrant the interference with the
presumption of innocence.125
More often than not, the indigent defendant suffers a double discrimination. The
first is that legal aid is either being withdrawn, or not available. The second is
that because of their poverty they are unable to afford their own lawyer. Legal
aid work is typically under funded with representation from inexperienced lawyers.
These inexperience levels do not necessarily correlate with competence but can lead
to ineffective assistance which can be potentially fatal in a criminal case. Working
within this “pressure cooker” environment, plea bargaining can provide, for the
indignant defendant, an alternative where they suffer bias and discrimination. It
is in these pressure cooker environments that the importance of the principle of
equality of arms comes to the fore. As Georgre Orwell noted in his essay England
your England,
“It is not that anyone imagines the law to be just. Everyone knows that
there is one law for the rich and another for the poor. But no one accepts
the implications of this, everyone takes it for granted that the law, such
as it is, will be respected, and feels a sense of outrage when it is not. ...
Everyone believes in his heart that the law can be, ought to be, and, on
the whole, will be impartially administered.”126
It is this state of affairs as put by George Orwell that the law ought to be impartially
administered that forms the basis of the argument of this thesis. The argument is
that the practice of plea bargaining creates a two-tiered justice system where the
principle of equality of arms needs to be respected.
Fairness as defined by the ECtHR as in the overall fairness of the trial is expansive
as it is flexible. This approach allows it to adapt to the changing times which is
necessary.
Fairness will also be looked at in the wider context of the search for the material
truth, the presumption of innocence and plea bargaining.
It will be argued that current modern interpretations of fairness are inadequate
to deal with the very real pressures of the plea bargain. This was evidenced in
the recent decision of the ECtHR concerning plea bargaining. In order to further
125
Ibid.
126
G. Orwell. England Your England. Secker and Warburg. London., February 19, 1941.
44
2.6 Rights for all?
understand the need to reformulate fairness in the plea bargaining relationship, it

is necessary to first examine the principle of equality of arms.
45
3 Equality of Arms
“Justice must not only be done, it must also be seen to be done ”1
The principle of the equality of arms lies at the very heart of the debate over the
right to a fair trial. As this is a principle it is necessary to clarify what is meant
when referring to principles as opposed to rules. One way in which to understand the
pivotal role played by the equality of arms is to look at the historical development
of the trial. As the different concepts of how a trial should look developed so did
the role of the defendant. The 19th Century Europe underwent a period of reforms
concerning the criminal procedural rules. It is during this time that the defendant
went from being the object of the proceedings to being considered a participant . This
distinction is significant as it shapes the way in which the trial would be conducted.
There are three models which have been identified as the form that a trial could
possibly adopt, adversarial, inquisitorial and accusatorial. The accusatorial trial
actually encompasses the adversarial mode as well. Within these different systems
and the subsequent changes of the 19th Century it can be seen that the distinctions
between the the accusatorial and the inquisitorial systems were not all that distinct
from one another. This position is based upon the fact that both systems have
incorporated a more of an accusatorial approach to justice in all of their trials.
Several theorist have argued for a new conceptualisation of the trial in particular
Damska. Amongst these new conceptualisation several different models have been
identified in which the principle of equality of arms applies and operates the best.
Two ideal-types of criminal procedure stand out with respect to this. The adversarial
fact-finding model or the inquisitorial fact-finding model.
Adversary means, “a method of resolving disputes and takes its contours from the
contested trial.”2 Whereas, accusatorial is, “a classic procedural model that encom-
1
R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233)
2
A. F. Breed, ed. Institute of Judicial Administration American Bar Association Juvenile Justice
Standards Standards Relating to Dispositional Procedures. American Bar Association. 1979,
p. 17.
46
Equality of Arms
passes not only an adversary trial procedure, but also other fundamental premises
like the presumption of innocence as it is for the accuser to prove his case and until
that time a defendant is to be treated as if he was innocent.” The accusatorial pro-
cess refers to the victim-prosecutor relationship and the adversarial process refers
to the prosecutor-defendant relationship.3
It is important what type of trial process one conceives of because it impacts upon
the way in which the principle of equality of arms is conceived of as well as applied.
The ancient Roman principle of audi alteram parten which is widely accepted to be
the modern day foundation for the principle of equality of arms has two parts to it.
The first is that the court should be bias-free in substance and procedure. This is
supported by there being an independent and impartial judiciary in the first place.
Secondly, there is the right to an equal and effective access to the court.4 What is
significant about the audi alteram parten principle is that it provides that a person
hears both sides of the case because it is not fair to have one party unheard. This
is not just because the situation would be unfair but more importantly because a
mistake could be made. Within this is the inherent proposition that there should
be provisions in place which secure a fair trial for both of the parties. As long as
the judge is fair in their approach then it will be considered that both of the parties
will have had a fair trial. It is evident that, “Procedural equality ensures that all
parties can have their say.”
“As procedural principles, the overlapping content of the principle of
adversary argument and that of participation discussed (...) is apparent.
In fact, one element of the principle of participation, the opportunity
to be heard, is incorporated in the principle of adversary equality, as it
demand an equal opportunity to be heard.”5
It is agreed in the literature that there is an inherent inequality in the criminal trial.
It is to some extent nonsensical talking about creating an equality of arms between
the prosecution and defence. The reason for this is that the prosecution just by the
very nature of their role have an advantage, they have the full force and the power
of the State behind them in the making of their case. The defence does not have
access to the same arsenal of tools. This is why there is a need for a “balance of
3
M. Fedorova. The Principle of Equality of Arms in International Criminal Proceedings. Inter-
sentia, 2012.
4
Ibid.
5
Ibid.
47
Equality of Arms
empowerment” between the parties. As the principle is an implied one this would
mean that the defence should have access to certain provisions. These provisions
are determined by looking at the content of Article 6 itself and the case law of the
ECtHR.
Equality of arms acts as a safeguard whereby we try to protect the defendant from
being either incarcerated from something they did not do and or becoming the victim
of a miscarriage of procedural justice. Lurking in the background lies the question of
how do we ensure that the innocent do not fall victim to the law machine , the answer
is by ensuring that through these well built mechanisms that the truth comes out.
In other words that justice is revealed as well as done. The route to finding justice is
marked with finding the truth. The quest for the truth brings to light quite clearly
the diverging opinions about how that should be achieved. This is particularly
apparent when we are considering the divergent approaches of the inquisitorial and
adversarial approaches to the trial. Within this there are diverging opinions about
the truth between the inquisitorial and adversarial procedural approaches;
“(...) inquisitorial procedural approach is overly committed to this ’sub-
stantive truth’. By contrast, it is said that the adversarial procedural
system adheres to the opposing ’procedural truth’ due to the historically
entrenched scepticism about the ability to uncover ’substantive truth’ in
general and in a criminal process in particular, and, thus, “the fairness
of proceedings becomes the main foundation of the verdict’s legitimacy,
and any result that has been found in conformity with procedural rules
becomes acceptable.”6
As such the inquisitorial process has become more extensively associated with the
’truth’ and the adversarial procedure with ’fairness’.
This situation leads us to the question of what is a principle. Because principles do
have to be fair just like rules in their out workings.
A principle can be defined as follows,
“principles are norms which require that something be realized to the
greatest extent possible given the legal and factual possibilities.”7
Principles behave differently to rules in that principles can conflict with each other
6
Fedorova, The Principle of Equality of Arms in International Criminal Proceedings.
7
Ibid.
48
Equality of Arms
because of the weight they possesses without removing the validity of the principle.8
This can be seen when we observe that it is agreed that a trial should be fair but the
principle of the equality of arms and the margin of appreciation would sometimes
appear to be working at cross purposes from one another. Despite this fact they
both manage to maintain an equilibrium, on a theoretical level, whereby they are
both pulling at opposite ends of the rope. It is when this tension becomes lax
that we encounter problems and the equilibrium created by both of the principles
disintegrates.
The equality of arms is a principle rather than a rule. It is necessary to establish its
character because it affects the way we approach the implementation of principles.
Principles are seen as being abstract whereas rules are more concrete. As such le-
gal principles act as signposts for showing the direction towards which one should
head in order to achieve the desired affect of the particular legal principle in ques-
tion. “Principles expressed as rights have more protection from interference from
politicians and the electorate than norms expressed as mere laws.”9
“Arguments based solely or principally on ’rights’ seem to ignore the
possibility that procedural fairness may require something else.”10
This then begs the question what is this, “something else”? The principle of equality
of arms does not provide any procedural guarantees or specific rights but rather it
aims to ensure a substantive balance between the parties to the proceedings.11 This
relates not only to being able to be present at the proceedings but also to the ability
to present evidence. In the case law of both the E. U. Commission and the ECtHR
they recognise that in order to be able to present evidence on an equal footing
with the prosecution the defence needs to have at their disposal all of the relevant
information in the making of their case in order to comply with the equality of
arms principle in line with Article 6 (3) (b). This is because the prosecution is in
a position of authority over the defence by virtue of the fact that they represent
the state they have more resources and information at their disposal. As such the
ECtHR has recognised the need for the definition of the equality of arms to be
expanded to include the fact that the prosecution should disclose to the defence
8
9
Human Rights.
10
Ibid.
11
J. Jackson and S. J. Summers. The Internalisation of Criminal Evidence Beyond the Common
Law and Civil Law Traditions. Cambridge University Press, 2012, p. 85.
49
Equality of Arms
any relevant material in its possession. This expansion of the principle to include
disclosure moves it towards a more substantive form rather than a formal definition.
This expansion of the equality of arms to the inclusion of disclosure has meant that
the scope of the equality of arms is extended to the pre-trial phase as well.12
When discussing the application of equality of arms invariably the two ideal-models
of criminal procedure are presented as being juxtaposed against each other as adver-
sarial versus the inquisitorial model. This adversarial/inquisitorial divide is some-
what outdated now in that there is scope for a third model as well. This third
model, which is the participatory model, has been argued for by John D. Jackson.
Jackson claims that the participatory model is being used by the ECtHR when they
look to see whether procedural safeguards are being protected in accordance with
the ECHR. When discussing this model of participation it is important to draw
a distinction between the principle of equality of arms and the principle of being
heard. This participatory model, however, does not take into consideration the effect
that plea bargaining has upon the re-conceptualisation of the criminal procedure.
The first relates to the procedural balances between the two parties whereas the
latter refers to the adversarial rights that come with the right to be heard.13 This
participatory model allows,
“ (...) the European states are given considerable freedom of manoeuvre
in realigning their procedures in a manner that respects the rights of the
defence.”14
This “considerable freedom of manoeuvre”finds its legal basis in the principle of the
margin of appreciation. The margin of appreciation allows the member state the
room to decide certain matters in line with their own national laws, if there are laws
which govern the issue in case. This room for manoeuvre has led to some different
interpretations and applications across the E. U. of the equality of arms.
The doctrine of margin of appreciation states that: “It is not for the Court to
substitute its view for that of the national courts which are primarily
competent to determine the admissibility of evidence.” 15 It must never-
theless satisfy itself that the proceedings as a whole were fair, having regard to any
12
Jackson and Summers, The Internalisation of Criminal Evidence Beyond the Common Law and
Civil Law Traditions, pp. 85–86.
13
Ibid., p. 86.
14
15
see, among other authorities, Schenk v. Switzerland, Application No., 10862/84, Judgment,
Strasbourg, 12 July 1988, Series A Number 140, p.29, par.46
50
Equality of Arms
possible irregularities before the case was brought before the courts at trial and on
appeal. As well as checking that the court had been able to remedy them if there
were any.16
This doctrine has been applied by the E. U. so as to afford member states sovereignty
over their domestic application of the ECHR fundamental rights. Unfortunately,
it has become a shield behind which to shirk from responsibility of their ECHR
obligations. This is apparent from the diverging practices amongst the member
states of a fair trial.
The concept of equality of arms is very much at the heart of the right to a fair trial.
This is never more so apparent then when considering the access of a defendant to
legal counsel. This right is most often associated with Article 6 but the recent case
law of the ECtHR has moved it into the territory of Article 5 as well. The fact that
equality of arms arguments have been used in connection with Article 5 indicates a
recognition that the right to a fair trial is also being extended to the pre trial stage.
This fact has significant ramifications for when we come to discuss the role of plea
bargains.
The essence of the principle is ensure that there is a fair chance for both parties to
present their case in such a way that the overall fairness of the trial is not compro-
mised.
Equality of arms only stretches so far as to give each party the reasonable opportu-
nity to present their case in court in conditions which do not place the other side at a
considerable disadvantage. If we were to apply this to the plea bargaining situation
the fact that each party must be given a reasonable opportunity to present their case
is something which is forfeited by this practice. There is the mistaken belief that
procedural equality equates with actual and effective equality. This is not the case.
In order to establish that the principle of equality of arms has been infringed the
standard which must be reached is that of “substantial disadvantage”. It is a very
low bar to overcome for the defendant in a plea bargain relationship. This standard
must be shown to have been reached by the party alleging the infringement of the
principle of equality of arms. That which constitutes a substantial disadvantage was
set out in the case of Dombo Beher B. V.17 It was established that the requirement
that parties should not be placed at a ’substantial disadvantage’ as regards their
16
Maline v. France (no.2) App. No. 18978/91, Judgement of 26 September 1996, par. 43
17
Application No. 14448/88, Judgment Strasbourg, 27 October 1993
51
3.1 Equality of Arms
positioning in the trial. It is upon this basis that one can evaluate a particular
situation so as to determine whether equality of arms has been respected.
that each party must be afforded a reasonable opportunity to present his
case - including his evidence - under conditions that do not place him at
a substantial disadvantage vis-a-vis his opponent.18
The dual concepts of being afforded a reasonable opportunity as well as the sub-
stantial disadvantage test have far reaching impacts upon the fairness of the trial.
It is evident that the practice of plea bargaining so far, according to the standards
set out by the ECtHR would be an infringement upon the principle of equality of
arms.
The phrase principle of equality of arms is misleading as it implies that both sides are
evenly and squarely matched, comparable to a medieval, fencing or shooting dual.19
The ECtHR has recognised that there is a discrepancy of equality between the two
parties and has stated that, “the defense must have the possibility to fully present
its case and not to be put at a substantial disadvantage vis-a-vis his opponent.”2021
Article 6 (3) (c) provides that a defendant has the right to defend oneself in person or
through legal assistance. Paragraph (3) (c) provides the guarantee that the accused
has the right to defend themselves through legal counsel of their choosing. If they do
not have the sufficient financial means to pay for the legal counsel then they should
be provided and given it free when it is in the interests of justice.22 In the case of
Pakelli v. Germany23 the ECtHR, when referring to Article 6 (3) (c) stated that
the, “object and purpose of this paragraph, which is designed to ensure effective
protection of the rights of the defence,” opted instead for the French word “et”
instead of the English “and”. Which meant that in this case the Court came up
with the following conclusion:
18
Application No. 14448/88,Judgment, Strasbourg, 27 October 1993, A.274, p.19
19
Trechsel, “The Significance of International Human Rights for Criminal Procedure”.
20
Bulut v. Austria, 1996, Eur. Ct. H. R., 10
21
Trechsel, “The Significance of International Human Rights for Criminal Procedure”.
22
P. van Dijk et al. Theory and Practice of the European Convention on Human Rights. Kluwer
Law International, 1998. isbn: 9789041105981. url: http://books.google.hu/books?id=
SZnzQ0fHuAUC, p. 468.
23
Application No. 8398/78, Judgment, Strasbourg 25 April 1983
52
a ’person charged with a criminal offence’ who does not wish to defend
himself in person must be able to have recourse to legal assistance of
his own choosing; if he does not have sufficient means to pay for such
assistance, he is entitled under the Convention to be given it free when
the interests of justice so require.24
The origins of the concept of equality of arms has it genus in Article 6 of the ECHR
however, the concept does pre-date even the existence of the ECHR. The essence of
the principle means to hear the other side of the question or “listen to what each
party may be able to advance, otherwise you cannot be sure that your decision will
be impartial or just.”25 This concept of equality of arms was introduced for the first
time into E. U. jurisprudence in the cases of Opfner and Hopfinger v. Austria26 and
Pataki and Dunshrin v. Austria27 Both of these cases centred around the problem
of the fact that the accused had not been given the equal opportunity to be heard
unlike the opposite side.
It was stated by the Commission that the legal basis for the equality of arms principle
is to be found in paragraph 3 of Article 6. This is also dependant upon how the
provisions in (b) and (c) are interpreted. The Commission was also of the opinion
that the principle of equality of arms is to be found in the wider definition of a fair
trial in Article 6 (1) of the ECHR. This position was later reaffirmed by the case of
Jespers v. Belgium28 . The ECtHR expresses the importance of equality of arms by
stating that,
“[i]n a democratic society within the meaning of the Convention, the
right to a fair administration of justice holds such a prominent place
that a restrictive interpretation of Article 6 para. 1 (art.6-1) would not
correspond to the aim and the purpose of that provision.”29
At what point of the trial does the principle of equality of arms apply? The answer
to this question is far from simple. It has been asserted that the principle pervades
all stages of the trial even the pre-trial stages. The case of X v. United Kingdom30
24
Judgment of 25 April 1983, A.64, Dijk et al., Theory and Practice of the European Convention
on Human Rights, p. 15
25
26
Application No. 524/59, report of 23 November 1962, Yearbook volume 6, 1963, p. 680
27
Application number 596/59 and 789/60, report of 28 March 1963, Yearbook volume 6, 1963, p.
718
28
Application No. 8403/78, Commission’s report, 14 December 1981, D & R 27, para 55
29
Delcourt v Belgium, Application No. 2689/65, Judgment, Strasbourg, 17 January 1970, para 25
30
Application No 9370/81, X v. the United Kingdom (not published) in Dijk et al., Theory and
53
3.2 The development of the principle of equality of arms in Europe
highlighted that, “Article 6 in principle requires the assistance of a lawyer in the

pre-trial phase.” The U. K. courts have struggled with at what stage legal counsel
should be provided. The Court held that a determining factor in whether and at
what stage counsel ought to be provided will be determined by the evidence. If the
evidence was evaluated in the presence of the defendant and his counsel who then
would have the opportunity to contradict the evidence the court will hold that any
confession made must be proved by the prosecution to have been made voluntarily.
Subsequently there will be no violation of Article 6.
The ECtHR in determining whether it would be in the interests of justice to provide
counsel provides a two stage test which must be met:
1. ’the seriousness of the alleged offence in conjunction with the severity of the
penalty that the accused risks,
2. the complexity of the case.’31
These two requirements act as a safety valve. The test helps member states to stay
in line with the spirit of the ECHR. It is left to the discretion of the member states
to regulate their own internal practices for awarding legal aid but it is confirmed by
the ECtHR that this should be done by taking into consideration the principle of
equality of arms and the case law of the court.
3.2 The development of the principle of equality of

arms in Europe
When assessing whether the trial has been fair the ECtHR looks at, if , “taken as a
whole, guarantees that a person charged with a criminal offence should ... be entitled
to be present and participate effectively in the hearing concerning the determination
of criminal charges against him.”32 Looking to the overall fairness of the trial the
ECtHR will take into consideration the doctrine of margin of appreciation when the
Court declares that it does not act as a court of fourth instance as the ECtHR does
not assess whether the domestic law has been applied appropriately or to assess the
facts.33 The ECtHR will rather, in these circumstances, focus on, “The question
Practice of the European Convention on Human Rights, p. 468
31
Dijk et al., Theory and Practice of the European Convention on Human Rights, p. 471.
32
Zhuk v Ukraine Application Number 45783/05, Judgment of 21 October 2010, para 26
33
54
3.2 The development of the principle of equality of arms in Europe
which must be answered is whether the proceedings as a whole, including the way
in which the evidence was obtained, were fair.”34 This notion of what constitutes
fair is set out in Article 6 and enumerated in its paragraphs in the form of a non
exhaustive list of minimum requirements.
The case of Delcourt v. Belgium35 was the first to raise the importance of appearance
as a test for ascertaining whether the equality of arms had been breached.
“each party must be afforded a reasonable opportunity to present his
case under conditions that do not place him at a disadvantage vis-a-vis
his opponent.”36 , 37 , 38
These conditions are set out in Article 6 of the ECHR which was reaffirmed by the
case law of the ECtHR. Because all that the defendant has to show is a disadvantage
vis-a-vis his opponent it should be theoretically easier for the defendant to receive the
protection of the principle of equality of arms. Despite this belief, the courts and the,
individual member states, still have the problem of quantifying the ’disadvantage’
and determining whether a particular situation is worthy of protection or not. This
endemic problem is most notable in the diverse protection of defendants right to fair
trial human rights across the EU Member States.
The substantial disadvantage test is not the most accurate standard. In the case of
Airey v. Ireland39 the Supreme Court applied an objective test:
’whether a reasonable person in the circumstances would have a reason-
able apprehension that the applicants would not have a fair hearing.’40
The Airey v Ireland case applied an objective test. This objective test presents its
own problems as it relies upon the reasonable man test being applied. This was a
foretaste of the appearance test which was built upon in the cases of Delcourt v.
Belgium41 and Brandstetter v. Austria42 which both reaffirmed the importance of
the appearance of fairness and equality of arms.
The equality of arms has expanded to include the right to legal assistance.
34
Allan v U. K. , Application Number 48539/99, Judgment of 5 November 2002, para 42
35
Application No. 2689/65, Judgment, Strasbourg, 17 January 1970
36
Bulut v. Austria, App. No. 17358/90 ¶ 47, Eur. Ct. H. R. (1996)
37
Lanz v. Austria, App. No. 24430/94 ¶ 57, Eur. Ct. H. R. (2002)
38
Öcalan v. Turkey, App. No. 46221/99 ¶ 159, Eur. Ct. H. R. (2005)
39
Application No. 6289/73, Judgment, Strasbourg, 9 October 1979
40
Bula Ltd. et al. v Tara Mines Ltd., 4 I. R. 412, 441(2000)
41
Application No. 2689/65, Judgment, Strasbourg, 17 January 1970
42
Application No. 11170/84; 12876/87; 13468/87, Judgment, Strasbourg, 28 August 199
55
3.3 The meaning of equality within equality of arms
Despite the recognition of the right to legal counsel in the case of Freixas v. Spain43
stated that,
’Article 6 (3) (c) does not guarantee the right to choose an official defence
counsel who is appointed by the court, nor does it guarantee a right to
be consulted with regard to the choice of an official defence counsel.’
In a similar case of the Supreme Court of California it was stated that,
’While it might be desirable to recognize [the right to choose legal aid
counsel] as an abstract principle, its application in the real world of crim-
inal courts procedure is fraught with complications ... Many a defendant
charged with a commonplace violation, in the dreary solitude of his jail
cell, contemplates his case as a cause celebre deserving representation by
a Clarence Darrow or a Jerry Geisler.’44
The judgments handed down in both of these cases are not unique. They illustrate
how far we have yet to go in reaching an integrated application of equality of arms.
The wording of the principle of equality of arms is somewhat misleading as they are
not applied in their strict meaning. The ECtHR has set out the standard against
which the application of the principle should be assessed that being the substantial
and appearance tests. Both of these tests help us to determine when an infringement
has occurred but not what equality is.
In the context of a fair trial this can mean two different things. The first is the
equality of parties before the law based on no discrimination. Secondly, the reg-
ulation of equality of the relationship between parties which are not on a similar
footing with competing interests.
It is very difficult to talk about equality between the parties in the latter relationship
when it is apparent that there is an inherent imbalance. The search for equality is
significant for what theory of justice we choose to implement.
“Theories of equality are usually linked to the concept of justice; through
their role as principles of justice the equality principles receive their nor-
43
[2000] ECHR 53590/99
44
Drumgo v. The People (1973) 106 Cal. Rptr. 631, 940
56
mative significance and a theory of justice cannot be explained without

the principles of equality.45 ”
In order to establish the equality in an inherently unequal relationship between the
defence and the prosecution one must locate the “reasonable opportunity” of the
defence to present their case .
The phrase means no more than that every party to proceedings must have a “rea-
sonable opportunity of presenting his case to the court under conditions which do
not place him at a disadvantage vis-à-vis his opponent. 4647
This position again presents us with more questions then it solves. A façade has
been created whereby we have overlooked the fact that equality is an illusory concept
which is unattainable unless the defendant adopts a way in which they can bargain
the best result for themselves. This position is not entirely satisfactory as we are
allowing the defendant to relinquish fundamental rights, in order to serve a new
interpretation of justice.
Article 6 (1) of the ECHR enshrines the principle of fairness requiring that the
member states practices comply with the rule of law. The fact that several member
states have signed the ECHR which includes the right to a fair trial presupposes
the fact that the member states believe that their domestic laws already adhere to
the rule of law. It is evident from the case law of the ECtHR that the application
of the rule of law has far ranging interpretations amongst the member states. It is
these variations that have caused problems recently when trying to work towards a
harmonisation of the distinct criminal procedural rules.
The fairness requirement of Article 6 (1) as two distinct elements which must be
protected;
1. a balance of procedural opportunities;
2. principle of adversarial procedure is both respected and upheld.
There are two distinct problems with the respecting of these elements of fairness as
illustrated by the case law. The first is when the prosecution fail to reveal certain
45
46
Dombo Beheer BV v. Netherlands (1993) 18 EHRR 213
47
In the Supreme Court of Judicature High Court Civil Jurisdiction No. 2016 of 2006 Clyde Ander-
son Grazette and The Attorney General 1st Respondent, The Director of Public Prosecutions
2nd Respondent, http://www.lawcourts.gov.bb/Lawlibrary/events.asp?id=565
57
evidence that they rely upon to form part of their case against the defendant. The
second is the institutionally impartiality of some systems which could bring into
question the reliability of the verdict in any given case.
The principle of adversariality and equality of arms have been accepted by most of
the European member states. This is in part because most of the member states
accept that the trial consists of two opposing parties and an impartial judge. All
member states make provisions for defendants to respond to the accusations being
brought against them as well as all of the member states asserting that their judiciary
is impartial.48
Despite this fact there are still tensions between what the ECtHR’s says fairness
is and that which is defined by the criminal procedure of the domestic law in the
member states. The ECtHR has, until recently, failed to emphasis the impact that
the pre-trial investigative stage has on the procedural fairness of the trial. The EC-
tHR has been slow to regulate the pre-trial proceedings which has resulted in this
stage of the criminal proceedings, in several member states, being very ambiguous
and resulting in grave infringements of the principle of fairness of Article 6. These
instances have led to a widespread concern and call for renewed attention to the pro-
cedural irregularities amongst the member states when it comes to the application
of the principles of adversariality and equality of arms.
The European member states do have a common heritage and understanding of
Article 6 however the timidity of the ECtHR in its application has led to varying
practices amongst the various member states (see: Salduz v. Turkey49 , X. Y. v.
Hungary50 , A. B. v. Hungary51 , A v. SSHD52 ).
Summers argues for a strengthening of the institutional systems so as to ensure the
consistent application of procedural rights as a means by which to pave the way
for unifying the procedural guarantees across Europe.53 Bárd states that one of the
reasons that it is difficult to harmonise the criminal procedures of the member states
is to do with the fact that the particular backgrounds of the criminal justice systems.
The difficulties of harmonisation are due in part to the fact that the member states
48
Which is important for rendering the judgment fair as well as just.
49
50
Application No. 43888/08, Judgment Strasbourg, 19 March 2013
51
52
[2004] UKHL 56
53
Human Rights.
58
all have their own historical and political and socio-psychological factors. Despite
these cultural differences which could form barriers the ECHR has exerted impact
upon the national criminal justice systems. This fact shows that, “the objective
of the criminal process is, besides enforcing substantive criminal law, to arrive at
accurate factual findings in a manner by which basic human rights are observed.”54
The relationship between the prosecution and the defence is central and critical to
having, “an adequate understanding of the modern conception of fairness in criminal
proceedings.”55 This can also be noted in the judicial recourse and the quality of the
proceedings which are very important when it comes to ensuring virtually all of the
Convention’s provisions.56
“The argument suggests that democratic values are reflected in the pro-
cedural law’s dealing with defendants by treating them not as mere ob-
jects of the proceeding but as active subjects involved in shaping the
trial.”57
The role of the ECtHR is to ensure that the preservation of the standard achieved
and to make sure that it does not drop below the acceptable standard.58 The ECtHR
has great potential to shape the rules in the criminal procedure of the Contracting
States by using the general measures mechanism. Bárd observes that there is great
power in their decision-making because it leaves no room for alternative interpreta-
tions, the member states can pick up on how and what they should be changing in
their national legislation.59 Summer notes that the movement to increase procedural
rights as if “throwing rights” at the problem will solve it could be more harmful than
beneficial;
“Merely insisting on the creation of procedural rights without considering
the context of their application could, moreover, reduce the guarantees
afforded to some accused persons; in the absence of system-wide regula-
tion, the creation of rights may cause unfairness instead of guaranteeing
54
in a Comparative Perspective.
55
Human Rights.
56
57
Ibid., p. 47.
58
Ibid.
59
Ibid., pp. 25–27.
59
3.4 The Belgian Cases: development of the equality of arms principle
fairness.”60 .
It would appear that there is indeed a shift in how fairness is being perceived. In
order to gather a better picture of how fairness is developing we need to look at the
Belgian cases decided before the ECtHR.
3.4 The Belgian Cases: development of the equality

of arms principle
The most striking development of the meaning of equality of arms in the context
of defence rights were the two cases of Delcourt v. Belgium61 and Borgers v. Bel-
gium62 . The twenty years that passed between the two decisions had a significant
impact upon how the fairness of a proceedings should be determined. In Delcourt
the focus of the ECtHR was upon the fairness of the role of the Avocat Général,
whereas in Borgers the ECtHR shifted its attention to the rights of the accused
and the perceived procedural fairness of the adversarial parties. In subsequent cases
the position of Borgers was reaffirmed where it was stated that, “[t]he principle of
equality of arms is only one feature of the wider concept of a fair trial, which also in-
cludes the fundamental right that criminal proceedings should be adversarial.”63 The
Court in Borgers also cited its previous decisions concerning equality of arms, “it is
a fundamental aspect of the right to a fair trial that criminal proceedings, including
elements of such proceedings which relate to procedure, should be adversarial and
there should be equality of arms between the prosecution and the defence.”64
It is always important to remember that the principle of equality of arms does not
confer specific rights but rather acts as a tool by which one can ensure that the
form that the criminal process takes complies with ensuring the equal application
of rights in a balanced way.
This concept of a fair balance is integral to understanding the way in which the
principle of equality of arms should be applied. A fair balance implies more than
60
61
Application No. 2689/65, Judgment, Strasbourg of 17 January 1970
62
Application no. 12005/86, Judgment, Strasbourg, 30 October 1991
63
Brandsetter v Austria, Application No. 1170/84, 12876/87, 13468/87, Judgment, Strasbourg,
28 August 1991, par 66
64
Rowe and Davis v United Kingdom, Application No. 28901/95, Judgment, Strasbourg, 16
February 2000, par 60
60
just having specific procedural rights enshrined. Rather it establishes that between
the parties there ought to be a balance of fairness.65
As we will see below the principle of equality of arms is closely linked to other
individual rights of the defence such as the right to legal representation and counsel
and the right to a fair trial. In the case of Foucher v. France the ECtHR stated
that the, “ (...) principle of equality of arms is an essential guarantee of the right
to defend oneself. (...) Its requirements also include the right to legal counsel, the
right to call and examine witnesses and the right to present at the trial.”66 This
ability to present at the trial is also an interrelated to the waiver and the practice
of plea bargaining.
The State has a positive obligation to ensure that the defendant is present and able
to defend himself in person.67 Similarly in the case of Belziuk v. Poland the ECtHR
stated that Article 6 (1) and the principle of equality of arms had not been adhered
to because the defendant had not been allowed to be present at the hearing.68
3.4.1 Jespers v. Belgium: case analysis
The central facet of the equality of arms is the requirement of balance between the
two parties to the proceedings. The principle does not necessarily ensure specific
rights but it does seek to ensure that rights are applied fairly. That this principle
has been applied across European countries demonstrates that the principle can be
applied irrespective of cultural constraints.69
The ECtHR delivered two distinct judgments in two cases where they concerned the
same factual and legislative problems. Fourteen years passed between the judgment
of the two cases. The ECtHR decided in Borgers that the principle of equality
of arms had been infringed. At the time the judgment seemed to be inconsistent
with its previous decisions and a break from the principle of fairness in European
Criminal procedure. The decision in Borgers was instrumental in developing the
understanding that the relationship between the prosecution and the defence is
65
Gorraiz Lizzarraga and others v. Spain, Application No. 62543/00, Judgment, Strausburg, 27
April 2004
66
Application No. 22209/93, Judgment, Strasbourg, 18 March 1997
67
Kremzov v Austria, Application No. 12350/86, Judgment, Strasbourg, 21 September 1993
68
Belziuk v Poland, Application Number 23103/93, Judgment of 25 March 1998, par 39
69
Human Rights.
61
central to the equality of arms. It is to this procedural relationship that we now

turn.
The case of Jespers v. Belgium70 followed the decision reached in Borgers. This
case illustrates how the ECtHR has further developed its jurisprudence. Jespers
reiterates that the right to access the prosecution’s file is an inherent part of the
principle of equality of arms:
“(...) in order to establish equality, as far as possible, between the prose-
cution and the defence that national legislation in most countries entrusts
the preliminary investigation to a member of the judiciary or, if it en-
trusts the investigation to the Public Prosecutor’s Department, instructs
the latter to gather evidence in favour of the accused as well as evidence
against him. (...) The Commission has already had occasion to point
out that the so-called ’equality of arms’ principle could be based not only
on Art. 6 (1) but also on Art. 6(3), especially sub. para. (b).”71
Jespers created a general positive obligation on each State to adopt ‘appropriate
measures’ to place the defence in parity with the prosecution.
In Jespers the ECtHR stated that the duty of disclosure extended to “any material
to which the prosecution or police could gain access. . . ” and that included “any
material which may assist the accused in exonerating himself or in obtaining a
reduction in sentence”. This was confirmed in Edwards and Lewis v. UK72 where the
ECtHR stated that material which was for the defendant should also be disclosed and
that measures to avoid disclosure should only be taken when strictly necessary.”73
Since the Commission’s decision in Jespers, the ECtHR has adopted a more re-
strictive definition of the principle of equality of arms. In Jespers the Commission
applied equality of arms as a means by which to counterbalance the discrepancies
between the individual and the State in a criminal trial. This counterbalancing has
been reformulated by the ECtHR into requiring the presence of an objective ele-
ment of reasonable opportunity and a subjective one of reasonable opportunity as
compared to the adversary.74 These elements are useful guideposts which work as
70
Application Number 8403/78, Commission’s report of 14 December 1981. D & R 27
71
Jespers v Belgium, Application Number 8403/78, Commission’s report of 14 December 1981. D
& R 27 par, 55
72
(2005) 40 EHRR 24
73
http://cymraeg.sfo.gov.uk/media/113319/european%20convention%20on%20human%20rights%20web%201.pdf
74
62
3.5 Equality of arms in the U. K.
indicators so as to determine if the parties are balanced. Despite this the ECtHR
has developed their application in both a formalistic and restrictive way resulting
in the scope not being as wide as it could be.
3.4.2 Lamy v. Belgium: case analysis
In Lamy v. Belgium75 it was stated that the principle of equality of arms was not
ensured if the counsel was denied access to the documents which are in the inves-
tigation file. As defence counsel would need access to them in order to effectively
defend their client.
In the case of Lamy the ECtHR has applied the protection of fundamental rights
in those circumstances where the defendant has been unable to prepare their case
efficiently for the court. The decision in Lamy concerns the ability to prepare one’s
case for trial after the decision has been made to proceed to the trial stage. The
case law of the ECtHR has yet to address the question of how practices like plea
bargaining may contest the appropriate application of the equality of arms. It is as if
the ECtHR has swept aside the issue by stating in its case law that when the rights
of the defence are limited in some kind of way an analysis will have to be carried out
as to whether the limitations in the particular situation were strictly necessary. This
appears to be sending the message that the ECtHR will be looking at whether the
restriction was kept to a minimum and whether the defendant was compensated in
some way for the limitation of their rights.76 The case law of the ECtHR establishes
that member states must apply the least restrictive measure when it comes to the
infringement of the defendant’s rights.77
Before the U. K. was a signatory to the ECHR the principle of equality of arms
had been recognised in the Magna Carta. The principle had been incorporated
through the mechanism of habeas corpus. The very premise of the Magna Carta
was to regulate the power of the King over his subject’s so as to protect the people’s
75
76
77
Van Mechelen v Netherlands, Application No. 21363/93, 21364/93, 21427/93, 22056/93, Judg-
ment of 23 April 1997, par 58
63
liberties from abuse. This was an early formulation of the equality of arms in the
U. K. .
The Magna Carta established the fact that there will be no violation of the principle
of equality of arms where both parties suffered an equal disadvantage in a matter.
In the case of Monnell and Morris v. United Kingdom the ECtHR further iterated
that,
“To begin with, the principle of equality of arms, inherent in the notion
of fairness under Article 6 § 1 (art.6-10 (....) , was respected in that the
prosecution, like the two accused, was not represented before either the
single judge or the full Court of Appeal.”78
When considering the right to an equal defence access to the relevant documentation
also should be taken into consideration. This right to disclosure plays a pivotal role
in the plea bargain as it is to some degree this issue which is being played on by
the prosecution. The limited access to the prosecution file inhibits the defence from
building an effective defense and knowing whether the prosecution really has a case
that can be answered. It is very difficult for there to be equality of arms when
the defence does not have access to or at its disposal the relevant information upon
which to build its case. When we consider the adversarial trial the defence must
have the opportunity to challenge the prosecutor’s submissions. The prosecutor
must also fulfil its obligations to disclose. This issue was raised in the case of I. J.
L. and others v. The United Kingdom,
“The right to an adversarial trial means, in a criminal case, that both
prosecution and defence must be given the opportunity to have knowl-
edge of and comment on the observations filed and the evidence provided
by the other party. In addition Article 6 § 1 requires that the prosecution
authorities should disclose to the defence all material evidence in their
possession for or against the accused.”79
The right to have access to the documents is intrinsically interwoven with the right
to have adequate time and facilities to prepare their case. The right to have adequate
time to prepare is reliant upon having adequate legal representation.80 This position
was further asserted in the case of John Murray v. U. K. this case illustrates
78
Application No. 9562/81 and 9818/82, Judgment of 2 March 1987, par 62
79
I. J. L. and others v The United Kingdom, Application Number 29522/95, 30056/96 and
30574/96, of Judgment of 19 September 2000, par 112
80
64
the reasoning of the Court where they emphasised the importance of the access to
counsel at the pre-trial investigative stage;
“The question, in each case, is whether the restriction, in the light of the
entirety of the proceedings, has deprived the accused of a fair hearing.”81
The U. K. recognised the importance of the pretrial phase to the overall outcome of
the trial. Despite this fact there has been limited application of the equality of arms
to practices which circumvent the trial as they do not impinge upon the overall
fairness outcome of the trial because there is not one. This is an unsatisfactory
conclusion as it does not address the fact that we have created a legal black hole
where the principle of equality of arms does not reach where there is quite clearly
an apparent unequal legal relationship. In the case of John Murray the ECtHR
recognised two important aspects. Firstly, that wherever and whenever possible
Article 6 may need to apply to the pretrial investigative stage as well82 and secondly,
that the right to counsel will be deemed necessary where their absence,
“would adversely affect the fairness of the subsequent hearing.”83
Lord Bingham, the advocate for the rule of law, stated in the case of Brown v.
Stott84 that,
“Equality of arms between the prosecutor and the defendant has been
recognised by the court as lying at the heart of the right to a fair trial.”
These cases both at the domestic level and the ECtHR send the clear message that
if one seeks to be protected by the principle of the equality of arms, then they must
proceed to the trial or at least the end result must be a trial. If one seeks to bargain
their justice then they lose their protective rights and shield we are all inherently
entitled to as human beings. The sword/shield analogy used to describe the role of
human rights in criminal proceedings has focused more on the prosecutorial sword
than the defensive shield in recent years. That is why it is important to discuss
the impact and the importance of the equality of arms. This integral concept, to
the right to a fair trial, has been shifted towards a more prosecutorial (focused)
model by the Member States. The ECtHR has sought to both extend its reach and
interpretation to apply to the whole of the trial proceedings to include the pre trial
investigative stage as well.
81
Judgment of 8 Feb 1996, Reports 1996-I, 30, (1996) 22 EHRR 29 at para 63
82
Imbrioscia v. Switzerland, Judgment of 24 Nov 1993, Series A no 275, (1994) 17 EHRR 441
83
Murray v. U. K. Judgment of 8 Feb 1996, Reports 1996-I, 30, (1996) 22 EHRR 29
84
[2003] 1 AC 681at para 106
65
3.6 The U. S. situation: The development of equality of arms
In light of the above we start to develop the picture that the ECtHR, when consider-
ing the fair trial in the context of the equality of arms has focused on predominantly
two aspects:
1. The right to hear; and,
2. The right to challenge evidence
Both of these elements apply to the trial stage. In order for them to be competently
satisfied the ECtHR has established that trials should be conducted in an adversarial
manner with respect for the constitute independent relationships which make it
possible for a trial to be conducted fairly.85
The U. K. has, for the most part followed the lead of the ECtHR in the development
of its own jurisprudence. This is not the case though for all countries when it comes
to the enshrining of the principle of the equality of arms. What better place to start
then the U. S. where the practice of plea bargaining is prevalent.
3.6 The U. S. situation: The development of equality

of arms
In the U. S., the evolution of the principle of equality of arms started to gain traction
in the 1960s. During this time there were a series of reforms to the constitutional
procedural rules which were instigated to help the prosecutorial load. The prose-
cution were overburdened and under financed also the increase in the caseload was
not matched by an increase in prosecutors. The reforms of the Warren Court had
little impact upon the practice of the prosecution in selecting those cases which
they were sure that they could prosecute. The Warren Court’s act of increasing
procedural rights so as to further protect the rights of the defence did nothing in
reality because, “ the procedural reforms vastly increased the cost of prosecuting
those able to exercise their procedural rights, this was kept in check by the low level
of funding for defence counsel which limited the potential for poor defendants to ’lit-
igate aggressively’.86 This resulted in a widening of the gap between the rich and the
85
M. Wasek-Wiaderek. The principle of "equality of arms" in criminal procedure under Article 6
of the European Convention on Human Rights and its functions in criminal justice of selected
European countries A comparative view. Leuven University Press, 2000.
86
Human Rights.
66
poor. It also created an uneven shift in the balance of proportional representation.

This lack of proportional representation further exacerbated the gap of unfairness
between the parties suspected of having committed a crime. It is here that we see
the limits of the procedural law in securing the fairness of the trial for all involved.
The U. S. presents an interesting example of this question of inherent inequality
between both the prosecution and defence when considering if a semblance of fairness
can be established between the parties in a criminal trial.
In the case of U. S. v. Tucker87 the court found that,
“A criminal prosecution [...] is in no sense a symmetrical proceeding
[...] The principle of equality of arms may apply in certain international
criminal law contexts, [...] but it has no place in our constitutional
jurisprudence.”
The Court asserted that the due process clause only requires that the defence receive
a constitutionally adequate defence
In the case of Wardius v. Oregon88 the Supreme Court stated that,
“ [...] ’due process’ is [...] designed to enhance the search for truth in
the criminal trial by insuring both the defendant and the State ample
opportunity to investigate certain facts crucial to the determination of
guilt or innocence.”
The Supreme Court further noted that despite the fact that the due process clause
says very little about the amount of discovery which each party must give to the
other but it,
“does speak to the balance of forces between the accused and his ac-
cuser.”89
The U. S. judges have noted that the Bill of Rights does not envision an adversary
proceeding between two equal parties. Rather the court recognises that in a criminal
proceeding the parties have very distinct roles with an uneven distribution of power
which does not lend itself to equalisation making it an unsound principle in the view
of the Supreme Court of the U. S. 90
87
249 F. R. D. 58, S. D. N. Y., 2008, February 07, 2008
88
412 U. S. 470, 474 (1973)
89
90
United States v Turkish, 623 F.2d 769, 774-775 (2nd Cir. 1980)
67
The U. S. Bill of Rights as well as their constitution recognise that an inherent im-
balance exists between the parties. This acknowledgement of the imbalance recog-
nises that their adversarial system works upon the premise that, “ (...) fairness
can be achieved only by recognizing the differences between the prosecution and
the defence.”91 Goldwasser has also noted that within the U. S. system that it is not
possible, to argue that both sides in the criminal trial should be afforded fairness.
An argument for making the parties equal in symmetry, would not work in the U.
S. criminal justice system.92
Both the fifth and the fourteenth amendments provide protection of individuals due
process rights and in particular the fact that in the criminal trial the defendant will
not be compelled to be a witness against himself.
“nor shall be compelled in any criminal case to be a witness against
himself, nor be deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
compensation.”
The fourteenth amendment of the United States of America in section one specifies
that,
“No state shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States; nor shall any state deprive
any person of life, liberty, or property, without due process of law; nor
deny to any person within its jurisdiction the equal protection of the
laws.”
Both of these principles together form the basis of the due process protection.
Judge Learned Hand, in the case of United States v. Garsson93 , stated that in the
U. S. criminal procedure the accused has every support needed so why should the
prosecution then have to reveal their hand in order for the defence to be able to go
over it and have an advantage. He went onto say that, “Our dangers do not lie in
too little tenderness to the accused. Our procedure has always been haunted by the
ghost of the innocent man convicted. It is an unreal dream.”(emphasis added)
In the case of Weatherford v. Bursey94 the Supreme Court of the U. S. stated
91
92
Goldwasser, 1989, pp 825-826 in ibid.
93
291 Fed. 646, 649 (S. D. N. Y. 1923)
94
429 U. S. 545, 559 (1977)
68
that there was no overriding constitutional right to discovery in a criminal trial.

Before this case was decided Brady v. Maryland95 established that there was a
constitutional right for the defence to have access to material from the prosecution
which is favourable to their defence. This case was followed by U. S. v. Agurs96 which
further established that there is a duty upon the prosecutor to reveal exculpatory
evidence.
As the above cases all illustrate equality of arms refers to three main areas, the duty
to disclose, the ability to question and have witnesses questioned on your behalf, and
the right to challenge evidence. In the context of plea bargaining both the discovery
and disclosure stage become very important because it is here that the prosecution
can mislead the defence as to the strength of the evidence against the defendant.
The defence also have to disclose and comply with the discovery stage as well es-
pecially when they are asserting a defence of alibi or insanity. The case of Wardius
v. Oregon established (with regards to the issue of an alibi defence) that the, “Due
Process Clause (...) does speak to the balance of forces between the accused and the
accuser, (...) discovery must be a two-way street. (...) It is fundamentally unfair
to require a defendant to divulge the details of his own case while at the same time
subjecting him to the hazard of surprise concerning refutation of the very pieces of
evidence which he disclosed to the State.”97
The importance of confrontation is felt by the defence when preparing its case. The
defence should be entitled to the natural benefit of being able to question witnesses
at the trial stage, this forms the adversarial nature of the trial in the context of the
accusatorial trinity.98
The right to be protected from being compelled to be a witness against oneself,
disclosure rules and the right to confrontation all fit into the framework of what
constitutes the principle of the equality of arms. The U. S. has established, the
position that those who engage in the trial will be afforded their constitutional
rights. In the situation that one decides to opt out of the trial then the words of
Judge Learned Hand coupled with the position of the U. S. Supreme Court that
equality of arms has no place in domestic proceedings paints a very dreary picture
95
373 U. S. 83 (1963)
96
United States Supreme Court, 427 U. S. 97 (1976)
97
United States Supreme Court, 412 U. S. 470, 474 (1973)
98
Human Rights.
69
3.7 Equality of arms in Germany
for the defendant.

Here as in the ECtHR case law we again see the limits of the application of the
equality of arms.
The right to a fair trial is enshrined in Article 20 of the German Constitution which
draws upon Article 6 of the ECHR.99
The principle of the equality of arms, in the case of Germany was first highlighted
in connection with the right to be assisted by legal counsel.
The formal introduction of equality of arms was realised through constitutional
provisions as well as E. U. human rights law in Germany
Germany had two predominant cases at the ECtHR which addressed this issue of
the right to choose one’s own legal counsel. The right to choose counsel was viewed
as being critical to the application of a fully comprehensible equality of arms.
The first case of Pakelli v. Germany100101 set out the following;
“31. Article 6(3)(c) guarantees three rights to a person charged with a
criminal offence: to defend himself in person, to defend himself through
legal assistance of his own choosing and, on certain conditions, to be
given legal assistance free.
These three standards were a step forwards but they then became quickly qualified
rights.
The second case, Croissant v. Germany102 further refined the right to choose who
your legal aid counsel would be;
“29 . . . It is true that Article 6(3)(c) entitles “everyone charged with
a criminal offence” to be defended by counsel of his own choosing (see
Pakelli v Germany). Nevertheless, and notwithstanding the importance
99
Wasek-Wiaderek, The principle of "equality of arms" in criminal procedure under Article 6 of
the European Convention on Human Rights and its functions in criminal justice of selected
European countries A comparative view.
100
Application No. 8398/78, Judgment, Strasbourg 25 April 1983
101
which was not cited by the ECtHR in the case of Freitas
102
[1990] [1992] ECHR 13611/88
70
of a relationship of confidence between lawyer and client, this right can-

not be considered to be absolute. It is necessarily subject to certain
limitations where free legal aid is concerned and also where, as in the
present case, it is for the courts to decide whether the interests of justice
require that the accused be defended by counsel appointed by them.”
In this case we begin to see the erosion of the right to choose counsel.
The two cases concerned complaints alleging the breach of equality of arms. The
breaches were based on the fact that because there was a lack of appropriate legal
counsel there was a denial of access to justice. This was just a foretaste of the
problem with the plea bargain and effective representation.
These cases were followed on by three further cases, Schops v. Germany103 , Garcia
Alva v. Germany104 ,and Lietzow v. Germany105 . Each of these cases concerned the
infringement of Article 5 and the right of all of the defendants in the cases to consult
or have access to certain information to help them prepare their case. They argued
that the lack of information placed them at a disadvantage vis-a-vis the prosecution.
Article 3 of the German Constitution ensures that individuals are equal before the
law. It is in this article that the German concept of the “equality of arms” principle
is found. The concept of the right to a fair trial, eines fairen Verfahrens, is a
constitutionally protected right. It is this fairen Verfahrens concept which forms the
basis for the German concept of the equality of arms principle. Additionally, section
115 (3) of the Code on Criminal Procedure allows access to the file further aiding
equality between the parties in the preparation of their cases before the court. Not
only must the defendant be afforded legal representation of their choosing they must
also be granted access to the file. Furthering strengthening this position the ECtHR
stated that the equality of arms is central to the Convention’s concept of a just and
fair criminal process.
German scholars have argued that the equality of arms concept (Waffengleich-
heit which means “equality of arms”) should be replace by an equality of chances
(Chancegleichheit) because it is a better and more accurate interpretation of the
reality as it, “implies that all unequal treatment of one party vis-a-vis the other
which is not justified by the natural role played by it in the procedure, is forbidden
103
Application No. 25116/94, Judgment, Strasbourg, 13, February 2001 para 48.
104
Application No. 23541/94. Judgment Strasbourg, 13, February 2001, para 42.
105
Application No. 24479/94, 13, February 2001, para 41
71
3.8 Italy’s development of the principle of equality of arms
as a breach of the equality requirement.”106

This approach by the German scholars is radically different from the approach
adopted by both the U. K. and the U. S. in that it recognises that there may
be some circumstances where the equality of arms may need to be extended.
It is indisputably mathematical nonsense to insist on the fact that there is a literal
“equality of arms” between the parties as this would mean that the defence should
be able to employ covert evidence gathering mechanisms just like the police do
with the prosecution.107 This is not the role of the defence and neither should it be
as this would be a shifting of the burden of proof onto the defence to prove their
innocence. The German approach of starting from their constitutional basis first
and then applying the law is to be lauded unlike the approach adopted by both the
U. S. and the U. K. where it is more about how to adapt the law so as to come
under the constitutional principles.
3.8 Italy’s development of the principle of equality of

arms
Article 111 [Legal Proceedings] of the Italian Constitution concerns the elements of
the principle of equality of arms. In its article 111 (2) Section II Rules on Jurisdiction
the Italian Constitution specifies that;
“Trials are based on equal confrontation of the parties before an indepen-
dent and impartial judge. The law has to define reasonable time limits
for the proceedings.”
Despite this clear specification of the equality of arms principle Italy has found itself
before the ECtHR numerous times concerning the infringement of this principle.
The case of Colozza v. Italy108 concerned the issue of the defendant being tried
in their absence on default because they were not notified of the documents of the
case pending against them. The ECtHR stated that it is implicit to the Article 6
(1) conception of the right to a fair trial that the defendant is entitled to take part
106
107
Ibid.
108
Judgment of 12 Feb 1985, Series A no 89, (1985) 7 EHRR 516, at para 27
72
in the hearing and as such the Italian government had infringed the defendant’s
right to exercise their right to a fair trial. This was followed by the case of Goddi
v. Italy109 in which they found a violation of Article 6 (3) (c). In this particular
case the defendant was not informed about the trial which meant that they were
unable to defend themselves against the charges as they were absent from the trial.
Consequently, they were unable to adequately prepare their defence. The ECtHR’s
case law has conflated several different theoretical concepts when drawing a picture
of what the right to being present should look like which has not been helpful.
This case was followed by that of Isgró v. Italy110 which concerned the fact that at
the pre-trial confrontation stage the applicant’s lawyer was not present, during the
confrontation between the defendant and the witness. The defendant alleged that
they were not granted a fair trial and that the equality of arms and the presumption
of innocence had been violated because they were then unable to challenge the
evidence of the witness at court because the witness had disappeared. The ECtHR
held that despite the fact that the defendant’s lawyer had not been present at
the confrontation stage and that the defendant had been unable to question the
witness at the trial this part of the evidence had not formed the sole basis of the
judgment of the domestic courts. The applicant was said to have had the advantage
of their Article 6 (3) (d) rights and as such there was no violation of Article 6. The
fact that the prosecutor had also been absent met the requirement of the principle
of the “equality of arms” in that neither party had had an advantage over the
other in procedural terms. But it is incompatible with the adversarial procedure
requirements. A lesser test of procedural fairness seems to be applied here at the
pre-trial investigative stage then at the in trial stage, (itself).
Surprisingly before even either of the above cases were decided the ECtHR had
already considered the matter of fundamental rights of the defendant in the case of
Artico v. Italy111 where the ECtHR concluded that the rights of the defence should
not be illusory or theoretical but rather practical and effective. This case concerned
the issue of the defendant being tried in their absence.
The right to be heard provides a bedrock against which all of the other due process
rights flow to form the equality of arms.
109
Judgment of 9 Apr 1984, Series A no 76, (1984) 6 EHRR 457, paras 27-32
110
Judgment of 19 Feb 1991, Series A no 194-A
111
[1980] ECHR 6694/74, para 33
73
Summers argues that if the right to be heard is to be considered as part of the

equality of arms it could be problematic in that the principle only ensures that
there is a procedural balance between both the defence and the prosecution. This
is problematic because if the defence was absent the right would not be violated so
long as the prosecution was also absent (as is seen in the case of Isgró v. Italy112 ).
Hence, this does not solve the inherent prejudicial miscarriages of justice against the
defendant when it comes to their right to be represented by effective counsel at all
stages of their trial proceedings in line with the principle of the equality of arms.
The Right to a Fair Trial as set out by Article 6 (1) does not set out any specifics of
how one might be able to determine what a fair trial looks like. Within the article
itself there is no specific mention of the relationship between the prosecution and the
defence in terms of defining what would be fair behaviour. This fact is not helped
by fair being defined in a multitude of varying and different ways.
The language that the ECtHR used to describe what constitutes a fair trial under
Article 6 and what constitutes equality of arms is very similar. This similarity could
lead one to the conclusion that the equality of arms is central to what we know as
being an adversarial trial.
This can be illustrated for example when looking at the judgments of the ECtHR.
When the court states that;
“[t]he principle of equality of arms is only one feature of the wider concept
of a fair trial, which also includes the fundamental right that criminal
proceedings should be adversarial.”113
and that;
“it is a fundamental aspect of the right to a fair trial that criminal
proceedings, including elements of such proceedings which relate to pro-
cedure, should be adversarial and that there should be equality of arms
between the prosecution and the defence.”114
What is key in these remarks by the ECtHR is that the definition given of an
adversarial trial is if not the same then very similar as to the one given for equality
of arms. The conclusion can then be drawn that the ability to adduce evidence
112
Judgment of 19 Feb 1991, Series A no 194-A
113
Belziuk v. Poland, judgment of 25 Mar 1998, Reports 1998-II, 338, (2000) 30 EHRR 614, para
37
114
Rowe and Davis v. United Kingdom, no 28901/95, ECHR 2000-II, (2000) 30 EHRR 1, para 60
74
3.9 Hungary and the development of the principle of equality of arms
against the other side as well as being given the opportunity to question witnesses
is integral both to the adversarial trial and the respect of the principle of equality
of arms.115
There is a fine line between the definition of the two concepts. Equality of arms
refers to the fact that both parties must be placed on an equal balance with each
other in the trial, that they both have equal opportunities to present at the trial as
well as have equal access to the evidence which is being presented at trial against
them. The right to a fair trial involves the procedural guarantee that both parties
to the proceedings will have the opportunity to challenge the evidence of the other
side. The adversarial guarantees of the trial also extend to the fact that the defence
has the right to informed of as well as the right to challenge any of the prosecution’s
arguments.
There should be room for a cross-disciplinary approach which makes room for the
realisation that different member states do have slightly varying practices at the
pre-trial stage. Therefore, Article 6 should apply to the pre-trial stage as well and
not only the in trial stage.116
The Italian constitution as well as the ECtHR have reaffirmed the fact that the
right to be represented is the key fundamental right from which it is possible to
ensure that one receives a fair trial in line with the equality of arms standards. It
is very clear from the ECtHR case law that one can only benefit from these rights
if they are within the context of the trial proceedings and they have adequate legal
representation
3.9 Hungary and the development of the principle of

equality of arms
Hungary has had several fundamental cases reach the ECtHR which concerned the
issue of equality of arms at the pre trial stage of the proceedings. In Hungary most
of the cases that deal with the equality of arms issues are cases which concern Article
5 (3).
115
Human Rights.
116
75
They were the following cases, X. Y. v. Hungary117 ,A. B. v. Hungary118 and Baksza
v. Hungary119 ,Osvath v. Hungary120 and Hagyó v. Hungary121
In Hungary the question of the principle of equality of arms has been addressed in
those cases concerning the appropriate use and length of pre trial detention.
The cases of X. Y. v. Hungary and A. B. v. Hungary are factually very similar. Both
of the cases were decided within nearly a month of each other at the ECtHR. Both
cases concerned the period of pre-trial detention, as well as the reason for its use.
The grounds were based on the risk of collusion and the intimidation of witnesses.
The defendants also asserted that the lack of access to the relevant documentation
in their cases resulted in both of the applicants being unable to mount adequate and
successfully challenges to their detention.
X. Y. ’s case was particularly alarming in that he was detained in pre-trial detention
for a long period of time whereas his co accused was released on bail. The defendant,
unlike his co accused, has a family to support, and was not a flight risk. The
prosecution maintained that there was a likely threat that he would interfere with
and intimidate the witnesses but did not provide any evidence to the defence to
support this argument.
In both cases the ECtHR held that the Hungarian government had failed to protect
the principle of the equality of arms when they did not allow adequate access to
the relevant documentation in both of the defendant’s cases. In the case of X. V. v.
Hungary the ECtHR found that there had been a violation of Article 5 (1), (3), and
(4). In the case of A. B. v. Hungary the ECtHR found a violation of Article 5 (4).
The ECtHR did not comment on the fact that in both cases the co accused who
cooperated with the investigation was out on bail far quicker than the defendants
who maintained and asserted their innocence. Both defendants were treated more
harshly for wanting to exercise their constitutional right to a fair trial.
On the same day in April 2013 two other cases were decided at the ECtHR. Both
cases were illustrative of the domestic courts adopting a heavily biased prosecution
view not taking into consideration the individual nature of the situations presented
before them. In each instance the defendants had been held on pre-trial detention
117
118
Application no. 33292/09, Judgment Strasbourg, 16 April 2013
119
Application no. 59196/08, Judgment, Strasbourg, 23 April 2013
120
Application no. 20723/02, Judgment, Strasbourg, 5 July 2005
121
Application no. 52624/10, Judgment, Strasbourg,23 April 2013
76
for extensive periods of time. In the case of Baksza, the defendant was held for two
years then placed on house arrest with no consideration of his personal circumstances
and risk of him colluding and intimidating witnesses. The defendant was also not
given proper access to the file against him and was thus unable to mount an effective
defence. The ECtHR held that in this way the defendant had not been afforded the
privilege of the protection of the principle of equality of arms and found a violation
of Article 5 (3).
Similarly in the case of Hagyo the ECtHR deemed that the pre-trial detention had
been excessive. The defendant had been denied access to the material upon which
the evidence against him was based. Again the Hungarian government cited the
reason, of fear of colluding and absconding as the reason for the excessive detention
of the defendant. The ECtHR stated that there had clearly been a violation of the
equality of arms when ,
A court examining an appeal against detention must provide guarantees
of a judicial procedure. The proceedings must be adversarial and must
always ensure “equality of arms” between the parties, the prosecutor and
the detained person. Equality of arms is not ensured if counsel is denied
access to those documents in the investigation file which are essential in
order to effectively to challenge the lawfulness of his client’s detention.122
As such the ECtHR held that there had been a violation of Article 5 (3).
Again in Osvath v. Hungary the risk of collusion and absconding were cited as
the reasons for the prolonging of the pre-trial detention of the defendant. The
defendant asserted that the fact that neither he nor his counsel had been consulted
about the reasons for his pre-trial detention, and they were not provided in advance
the motions by the prosecution and the fact that it was decided upon in camera
violated the principle of equality of arms. As such the ECtHR concluded that the
defendant, in the circumstance of their particular case had not had the benefit,
of a procedure that was really adversarial.123
From this statement we can draw the conclusion that the principle of the equality
of arms finds its true fulfillment as well as place in the context of an adversarial
atmosphere, namely, the trial.
122
Hagyo v. Hungary, Application No. 52624/10, Judgment, Strasbourg,23 April 2013, para 68.
123
Osvath v. Hungary, Application no. 20723/02, Judgment, Strasbourg, 5 July 2005, para 18.
77
3.10 Serbian approaches to the principle of equality of arms
These cases illustrate that in the Hungarian context there is an overall ease with
which defendants are detained for excessive periods of time so that the prosecution
can build their cases against them. While in this position the defendant is treated
as being presumed guilty and is unable to access the relevant documentation which
may serve to help them prove their innocence. Additionally, there is an underlying
tendency to inadvertently punish those who would seek to maintain their innocence
by crushing their spirits through the unnecessarily invasive and restricted measures
of pre-trial detention or be that house arrest.
These cases illustrate that the ECtHR has determined that the State must show
that they have clear evidence to support their reason for further detention and if
they have evidence to show it to the defence. The State must not be allowed to use
pre-trial detention as a mechanism by which to intimidate the defendant into giving
up their right to presumption of innocence as well as the right to a fair trial.
3.10 Serbian approaches to the principle of equality

of arms
The Serbian Constitution (adopted on the 28th/29th of October 2006) provides in

its Article 19 Purpose of constitutional guarantees, that the
Guarantees for inalienable human and minority rights in the Constitution
have the purpose of preserving human dignity and exercising full freedom
and equality of each individual in a just, open, and democratic society
based on the principle of the rule of law.
This is followed up in Article 32124 which enshrines the right to a fair trial. Article
32 does not explicitly refer to the equality of arms but can be inferred from the rights
that it protects such as the right to legal assistance. The right to legal assistance is
further supported and enshrined in Article 67 which stipulates that
124
(1) Everyone has the right to a public hearing before an independent and impartial tribunal
established by the law within reasonable time which pronounces judgement on their rights
and obligations, grounds for suspicion resulting in initiated procedure and accusations brought
against them. (2) Everyone is guaranteed the right to free assistance of an interpreter if the
person does not speak or understand the language officially used in the court and the right
to free assistance of an interpreter if the person is blind, deaf, or dumb. (3) The press and
public may be excluded from all or part of the court procedure only in the interest of protecting
national security, public order and morals in a democratic society, interests of juveniles or the
protection of private life of the parties, in accordance with the law.
78
3.10 Serbian approaches to the principle of equality of arms
(1) Everyone is guaranteed right to legal assistance under conditions

stipulated by the law. (2) Legal assistance has to be provided by legal
professionals, as an independent and autonomous service, and legal as-
sistance offices established in the units of local self-government in accor-
dance with the law. (3) The law stipulates the conditions for providing
free legal assistance.
Article 35 (5)125 further enshrines the principle of equality of arms in that it allows
for the presenting of evidence and the bringing as well as questioning of witnesses.
This is followed up by the provision of equal protection of rights before courts and
other state bodies, in Article 36 (1)126 of the Serbian constitution.
All of these articles, woven together work to protect the right and principle of the
equality of arms before the courts.
The ECtHR has of yet to consider any cases brought against the government of
Serbia concerning the issue of the infringement of the principle of the equality of
arms. Despite this fact the ECtHR has had reason to consider issues where the right
to a fair trial has been violated.127
One example of this is the case of Dermanovic v. Serbia128 where the applicant
claimed that his Article 5 and Article 6 rights of the ECHR had been violated. The
basis for his argument was that the period of his detention had been too long. He
was remanded in detention because it was deemed that he was a risk for absconding.
Eventually, this was relented upon and he was placed on house arrest. In this case the
ECtHR held that there had been a violation of both Articles 5 and 6. Firstly, because
the extension of the pre-trial detention was not justified and secondly because the
applicant had not been brought before a court within a reasonable amount of time.
125
(5) Any person prosecuted for criminal offense has the right to present evidence in his favour
by himself or through his legal counsel, to examine witnesses against him and demand that
witnesses on his behalf be examined under the same conditions as the witnesses against him
and in his presence.
126
Article 36 Right to equal protection of rights and legal remedy (1) Equal protection of rights
before courts and other state bodies, entities exercising public powers and bodies of the au-
tonomous province or local self-government are guaranteed.
127
The issue of the equality of arms and Serbia has arisen in the cases before the International
Criminal Tribunal for the former Yugoslavia (ICTY) in the Tadic case (Case No. IT-94-1-T, 7
May 1997) where it was stated that whenever possible the defence will be granted the ability to
call witnesses on the same footing as the State. This ability it was recognised was not always
possible as sometimes the State would employ tactics which meant that the witnesses were
obstructed from appearing before the Court.
128
Application No. 48497/06, Judgment, Strasbourg, 23 February 2010
79
3.11 Concluding thoughts
Similarly in the case of Vrencev v. Serbia129 the ECtHR had again to consider
the question of the appropriate amount of time to be spent on pre-trial detention
because of the possible risks of the absconding nature of the applicant. Here the
ECtHR had to consider the question of whether,
Whenever the danger of absconding can be avoided by bail or other
guarantees, the accused must be released, it being incumbent on the
national authorities to always duly consider such alternatives (see, mu-
tatis mutandis, G. K. v. Poland, no. 38816/97, § 85, 20 January 2004),
notwithstanding the fact that it cannot be required of them that the ex-
amination of bail takes place with any more speed than is demanded of
the first automatic review of the applicant’s detention, which the Court
has already identified as being a maximum of four days (see McKay v.
the United Kingdom, cited above, §47). Where a lighter sentence can
be anticipated, the reduced incentive for the accused to abscond should
also be taken into account130
As in the case of Hungary, the defendant by not cooperating with the authorities
in their investigations because they want to try to maintain their innocence has
been penalised. Heavy handed measures are employed which seek to silence and
subjugate the defendant. These practice and tactics all serve to push the principle
of the equality of arms to the periphery. The right to a fair trial is infringed when
delaying tactics are put in place which seek to circumvent the trial. In doing so
we create a legal culture which relies upon placing the defendant in intolerable
conditions so as bring about a speedy resolution.
In general terms two things can be observed when looking at the principle of equality
of arms. Firstly, that the principle of participation has two main parts at its core,
the right to notice and the right to be heard.131 These elements feed into how a trial
is then considered to be fair. This leads us to the second element fairness. As was
noted above there are several different concepts which abound when it comes to the
129
Application No.2361/05, Judgment, Strasbourg, 23 September 2008
130
Application No.2361/05, Judgment, Strasbourg, 23 September 2008, para 76
131
80
term fairness. The question what do we mean when we use the term fair should be
looked at through the lens of procedural fairness.
The way in which we answer what is fair will be dependant to some extent upon the
cultural and theoretical notions that drive that particular society.132 Fairness refers
predominantly to the “quality of the procedure”, whereas justice is predominantly
used to refer to the outcome(s) of results.133
Fairness has a close connection to concepts such as equality before the law rather
than to notions of individual rights or autonomy.134 Equality before the law is a
societal conception rather than one which is and can be regulated by the law.
“As long as the judicial ’constitutional-type’ regulation extends only ex-
tends (sic) to regulating procedural rights, there will be potential for
the legislature to interfere with the manner and the context in which
these rights can be applied. This creates an imbalance that negatively
impacts on procedural rights and on the potential for fair proceedings.
This failure to appreciate the central importance of links between the
institutional form of the proceedings and the extent of the applicable
rights of the accused also highlights deficiencies in the understanding of
the nature of procedural rights and their relationship to the procedural
criminal law.”135
The general reforms of the trial in the nineteenth century were not generally based on
securing the “individual right to a fair trial” but rather that all be granted the equal
before law status and that everyone brought before the law would be prosecuted
on the same basis.136 This is the very central argument of this thesis; that fairness
ought to be as well as should mean being treated equally fairly before the law.
According to the Article 6 case law the conclusion can be drawn that the procedural
forms do not have to be exactly identical in order for them to be considered “proce-
durally fair”. An approximation, however, is strived for that will at least maintain
as well as protect the minimum standards.
In order to establish a violation the ECtHR employs a two-stage test. The first
132
133
Ibid.
134
Human Rights.
135
Ibid.
136
Ibid.
81
element that has to be established is the lack of procedural or institutional balance.

Secondly, the effect of this imbalance must be shown to have an impact upon the
fairness of the trial as a whole.
In the case of Lanz v. Austria137 it appeared that the ECtHR was stating that there
was no need to show actual prejudice so long as it could be shown that the defendant
had suffered some kind of a detriment which would lead to the trial not being fair.
So once an imbalance between the parties has been established the ECtHR will
look at the effect of this imbalance on the trial as a whole. The reverse, however,
also works. In Kremzow v. Austria138 the ECtHR stated that, ’single and minor
inequalities during the procedure could be outweighed by the general fairness of the
proceedings.’139
Summers predominant argument is that it is incredibly misleading to talk about
dividing criminal procedure into the adversarial and the inquisitorial. As she argues
the 19th Century jurists show that the two main requirements constituting a fair
trial, which must be met, are the adversariality principle (constituting the adver-
sarial trinity) and the equality of arms principle. Further evidence of this inherent
commonality is the relative ease with which Article 6 has been applied across the
various extensive Member States criminal jurisdictions. The impact of Article 6 is
that it has been instrumental in requiring the Member States to align their proce-
dures. This is evident in part from the case law produced of the ECtHR as well
as the initiatives of the European Commission to encourage the Member States to
instigate procedural guarantees to ensure the rights of the defence. Jackson states
that the ECtHR is helping to redefine the definition of criminal procedure and by
doing so it is moving beyond the adversarial/inquisitorial divide. As a result of this
the Member States have considerable room within which to create procedures or to
further enshrine as well as respect the rights of the defence.140 The European Com-
mission has recognised that this process could be further encouraged by recognising
the need to alleviate the importance of coherency as well as consistency in the appli-
cation of the principle of equality of arms as well as the accusatorial trinity. We need
to be able to move beyond the conceptualisation of the pre-trial investigative stage
and the trial having no bearing on one another. This is unhelpful to the upholding
137
Application Number 24430/94, Judgment of 31 January 2002, par 58
138
Application No. 12350/86, Judgment, Strasbourg,21 July September par 75
139
140
J. D. Jackson. “The Effect of Human Rights on Criminal Evidentiary Processes: Towards Con-
vergence, Divergence or Realignment”. In: M. L. R. 68 (2005), p. 737.
82
of the fairness of the trial as a sacrosanct concept.

Summers makes an apt observation that perhaps the unsettling problems of the
consistent disregard of the pre-trial investigative stage is deliberate and emphasises
overt preference of prosecuting crime as compared to the importance of maintaining
an adversarial understanding of the trial as well as fairness and the legitimacy of
the criminal procedural system.141 This would be a point that I agree with as I see
that there is a move now to punish those who want to exercise their defence rights
to have a fair trial. They are penalised for doing so. This is not a phenomenon
which is just limited to Europe. America has also wide held practices which serve
to disregard the adversariality as well as equality of arms of the criminal procedural
system (such as the practice of plea bargaining).
Procedural fairness and cost requirements need to be balanced against each other
in order to be able to reach a fair result. This is the current tension with regards
to plea bargaining we should not sacrifice legal representation for cost benefits. We
must ensure that participation in criminal trials is meaningful as well as effective.
“Meaningful participation requires notice and opportunity to be heard,
and it requires a reasonable balance between cost and accuracy.”142
So how does one achieve a system whereby a perfect balance is reached between all
of the competing interests as well as theories? One starting place is to first of all
recognise that accurate results are not enough as “[j]ustice has a price, and there is
a point at which that price is not paying.”143 Are we seeking accurate outcomes in
a particular case or rather systematic accuracy whereby we seek to have a correct
result in all future cases?144 If the latter is the case then we have missed the mark
of justice in our quest for perfection.
“(...) Solum argues that because perfection (in the sense of perfect accu-
rate results) is an ideal best, “a fair procedure must, at a minimum, strike
a fair or reasonable balance between the benefits of accurate outcomes
and the costs imposed by the system of procedures.”145
The criminal trial is often depicted as the example of an imperfect procedural justice.
141
Human Rights.
142
L. B. Solum. “Procedural Justice”. In: S. Cal. L. Rev. 78 (2004), pp. 181–321.
143
144
Ibid.
145
Solum, “Procedural Justice”.
83
Because it is evident that it is not possible to create a system whereby correct

outcomes are always secured as well as achieved. An example of a correct outcome
is convicting the guilty but this is not always achieved.
In order to reconcile ourselves with this position, Solum proposes a balancing model
of procedural justice so as to overcome this evident impossibility of creating a perfect
system. There are three ways in which the balancing model can be interpreted,
1. utilitarian view balances accuracy and costs,
2. rights-based approach “assumes that procedural justice requires attention to
the fair distribution of the costs imposed by the system of procedure.”,
3. procedural justice is pure there is a correct or fair procedure that leads, if it
is properly followed, to a correct outcome.146
The rights based approach will be the one that is adopted in this thesis. Procedural
fairness resulting in fair outcomes is predicated on the ability of individuals who
are directly affected by the decision being able to participate in the process. Here
it is important to remember the significance of the involvement of defence counsel
in enabling an effective participation on the behalf of the defendant. “The key
notion is that it is the process itself and not the outcome that defines procedural
justice.”147 Even still that is not enough, the Member States must also make sure
to ensure that the minimum guarantees of Article 6 (3) (c) are adhered to in their
application of their rights.
A good illustration of pure procedural justice is often referred to as Rawls gaming
example. So long as the rules of the game are followed fairly, no matter what
the result of the game is so long as the winnings are handed out fairly then the
procedure will be deemed to have been fair. This analogy is often used to explain
the adversary system but it fails in one critical aspect in that the defendant is
forced to “play”. Sometimes the term “level playing field” derived from the gaming
language, to explain the relationship between the parties must be one which is a
“level playing field”. One side cannot be given an unfair advantage over that of the
other.148 This is obviously far from the reality as evidenced above in the case law of
both the ECtHR and the domestic courts.
146
J. Rawls. A Theory of Justice. Cambridge, MA: Belknap Press of Harvard University Press,
1971, p. 86.
147
148
84
In connection with this emphasis upon the requirement of equal participation/equal

playing field Solum developed three rules for establishing the best situation of com-
munication,
1. Rule of Participation, “each person who is capable of engaging in communica-
tion and action is allowed to participate.”
2. Rule of Equality of Communicative Opportunity, “each participant is given
an equal opportunity to communicate with respect to the following: each
participant is allowed to (i) call into question any proposal, (ii) introduce any
proposal into discourse, and (iii) express attitudes, sincere beliefs, wishes, and
needs (...)”,
3. Rule against Compulsion, “no participant may be hindered by compulsion -
whether arising from inside the discourse or outside of it - from making use of
the rights secured under (1) and (2).”149
These three rules reflect very well the ideology behind the principle of the equality of
arms. We can see that this is the case from the elements that the ECtHR case law has
identified as being necessary to be present in order for their to be equality between
the parties to the trial. Despite these rules, it is argued as in the case of the U. S. and
also the theorist Uviller that a literal balance of resources and power is something
which is not attainable in a criminal trial. Rather that any entitlements, as Uviller
calls them, should fit the distinct as well as different roles that the two parties play
in the criminal trial. The American academic literature on this topic of equality
of arms frames the discussion in terms of balanced empowerment. The balance of
equality should fit the appropriate roles of the defense and the prosecution. But,
this kind of an inequality only becomes unfair if it is disproportionate impediment
to one side completing their task appropriately.
On the contrary Silver, argues that the proper application of the principle of equality
of arms does not apply to ensuring that both parties have the same advantages but
rather that it applies to the procedural rights of the prosecution and defence in
advocating and presenting their case. Following on from Silver’s proposition it can be
said that equality of arms is based on the premise that there is at least a theoretical
equality between the two parties. Additionally, the main function of the principle is
to ensure equal procedural opportunities. So the only procedural opportunities that
need to be addressed are those ones which are reciprocal in nature as they are the
149
85
only ones which can be applied equally. There are some non-reciprocal advantages
which are essential and they cannot be applied equally as these help to offset the
advantage that the prosecution has over the defence. For example, to have assistance
of a counsel and adequate time and facilities to prepare a defence; to have the right
to access and the ability to comment on the evidence against him, and to have the
right to secure attendance and examination of witnesses on his behalf under the
same conditions as witnesses against him.150
The main point of contention amongst the legal theorist concerning the principle
of equality of arms is what are both parties entitled to and do these entitlements
necessarily have to be the same.
It is accepted that this inherent inequality exists but the question should be what
can we do about this inherent inequality or rather imbalance?
According to Fedorova,
“Much depends on the political climate at a particular time and whether
there is dissatisfaction with the criminal justice system that brings along
more ’crime control’ voices that is capable of (temporary) silencing the
’due process’ proponents.”151
This is sadly a state of affairs that is being felt across several member states that
the due process proponents have been silenced.
One of the key facets of due process which is most often silenced (and also forms an
integral part of the principle of the equality of arms and also in plea bargain) is the
ability to access the relevant information and or documentation in the case in order
to be able to mount an effective defence or even a prosecution.
Access to information is a central component of the equality of arms concept. The
disclosure of evidence serves as a mechanism by which to equalize the powers between
the parties. There is always debate over how much disclosure ought to be granted.
As it is a fine balance on the part of the prosecution so as not to place the defendant
in too favourable position.
The sticking point for the application of the principle of equality of arms is the pre-
trial investigative stage. It is here that the way in which the defendant is viewed
in the criminal procedure has changed drastically. The defendant went from being
150
151
Ibid.
86
viewed as an object of the proceedings to being viewed as a participant. In 2000

in France there was reform of the law and it introduced a legal right to be told
the nature of the offence and the right to have access to a lawyer during custody.
The Netherlands have also recently strengthened the position of the defendant in
the pre trial investigative stage. The Netherlands have introduced measures which
mean that the defendant can now access case files from the moment of first police
interrogation after arrest.152
“The developments at the level of the European Court of Human Rights
have some challenging consequences for many continental procedures.
In fact, it has been argued that the expansion of defence participation
has not only influenced the judges’ approach to the protection of de-
fence rights, but also set in motion several ’neutralizing’ legislative ap-
proaches.”153
The question then hangs in the air which of the two systems is the most appropriate
as well as best suited for accommodating the principle of equality of arms. Lawyers
whose background is in adversarial system, such as is mine, have a resistance to
adopting a methodology that impacts upon their core values.
“Changes that implicate these core values, are difficult not only because
they challenge deeply held notions of justice and fairness but because
they pose a threat to us - for to consider the merits of another method-
ology is to critically reflect on whether our own method is truly fair,”
It is this very introspective thinking that Groome, states as being most difficult and
revealing it is essential to evaluating whether one’s criminal procedure is up to the
test. This is to some extent what the ECtHR does every time it hears a case on the
right to a fair trial it is assessing whether or not the actions of the parties conform
to the commonly accepted notions of fairness and justice. Which is stripping away
of the titles of “inquisitorial” and “adversarial” and looking to the very make-up of
the trial itself to ask the bigger question, egos aside, does this trial adhere to the
principle of equality of arms?
The principle of equality of arms encompasses wider expectations of what a defence
should be afforded both in its preparation of a trial and in the trial itself. Par-
ticipation, accuracy and efficiency are all key elements which have developed out
152
Law of 13 December 2011, Stb. 2011, nr. 601
153
87
of equality of arms. When considering the best model for incorporating equality
of arms one has to take into consideration the distinct roles that the parties play
in both of the systems. It has already been established that there is an inherent
inequality in the criminal trial from the set go and as such it is possible to achieve
some fairness by adhering to the minimum requirements that have been given to
the defendant. The best way to be able to do this is through balanced empower-
ment. The balanced empowerment concept supposes that procedural requirements
are handed out in light of the role of the party in the criminal trial.154 Here we talk
about non-reciprocal and reciprocal procedural entitlements. The equality of arms
applies to reciprocal entitlements. “As a procedural device, the principle of equal-
ity of arms implies reciprocity in procedural possibilities and restrictions. (...) the
principle of equality of arms implies formal procedural equality between two parties.
(...) To the extent that the advantages are reciprocal, the principle of equality of
arms applies.”155
The effective participation of the defendant is connected to how one perceives a trial
to be. This is because it is a place where one can express their autonomy as well as
participate in their own defence.156 Trials are essentially where the public can see
that justice is done.157
In light of this it can be stated that there are two parts which make up the whole
of the complete concept of the right to a fair trial,
1. the expression of individual autonomy in the form of the right to be represented
as well as take part in an active role in their own defence;
2. is the fact that in order for a trial to be conceived of as being fair it is nec-
essary for it to be public and the verdict must be reached through either an
accusatorial or adversarial method.158
The right to an effective defence fits right between these two requirements. It acts
as the conduit from which the access to justice requirements can be met and flow
to the defendant.
“Article 6(3) protects the right of a defendant to legal assistance of his
choosing, and for that access to be free if it is in the interests of justice
154
155
Ibid.
156
Ibid.
157
Ibid.
158
Ibid.
88
and the defendant has inadequate financial means. Contact with legal
representatives must not be restricted unless under exceptional circum-
stances. ”159
One apparent reason for the confusion over whether the defendant should be present
at trial is in part due to the conflicting nature of the case law. The general rule,
which can be drawn from both the requirement that the trial be adversarial in
nature as well as adhering to the equality of arms, is that where the appeal to be
considered concerns issues both of law and fact the defendant should be present and
has the right to be. The ECtHR case law appears to be saying that where there is an
issue where the evidence will be discussed the defendant has the right to be present.
Where there is no room or just simply will be no discussion and or examination
of the evidence then there will be no corresponding right of the defendant to be
present. Part of the problem with this right of the defence to be present is that it
is not agreed upon in the case law as to how it should be applied.160
The ECtHR has ruled that in cases where the prosecution has not revealed evidence
or only at a late stage key evidence as having an impact upon the adversariality
of the trial there will be a violation. If the prosecution relies upon documents that
the defence has not had access to then it will be deemed as unfairly prejudicing
their case. Where the defendant fails to challenge submissions or to examine the
files submitted by the prosecution then there will be no breach of the principle of
“equality of arms”.
“The adversarial proceedings requirement seems therefore to be not only
the basis of the ’right of the defence’ but also the product of a specific
understanding of criminal proceedings, with its roots in the nineteenth
century developments as governed by the accusatorial trinity and as com-
prising two distinct phases: the public trial and the investigative pre-trial
phase. These defence rights must therefore be seen not only as guaran-
teeing the autonomy of the accused, but also as an important aspect of
upholding the institutional basis of criminal proceedings.”161
These two distinct phases have now merged. Irrespective of this fact there still
159
http://cymraeg.sfo.gov.uk/media/113319/
european%20convention%20on%20human%20rights%20web%201.pdf
160
Human Rights.
161
Ibid.
89
remain questions over practices which are not adequately covered by the principle
of equality of arms.
90
4 Access to Justice
“the law is a system that protects everybody who can afford a good
lawyer.” - Mark Twain
The European Parliament and the Council, as a result of a series of ECtHR cases
have set out guidelines for the member states when it comes to assuring access to
justice for the defendant.
The European Parliament, Council and the ECtHR recognises that there is a three
tiered approach which needs to be adopted when talking about access to justice. The
three tiered approach includes taking a human rights approach when considering
the following three areas; equality of arms, effective representation and effective
participation. It is these three areas which the Stockholm Programme and the E.
U. Directives have sought to harmonise through the procedural safeguards of the
defendant in criminal trials.
The E. U., in recognising the need to work towards harmonising the access to justice
of citizens issued a roadmap which was partly developed to help deal with the
problems that arose in the aftermath of the European Arrest Warrant (EAW). The
E. U. adopted three directives in its roadmap.The first two directives which have
been are adopted are the, Directive on the right to interpretation and translation
in criminal proceedings1 and the Directive on the right to information in criminal
proceedings.2 The third Directive which has caused some problems amongst the
Member States when it comes to its adoption is the Directive on rights of access to
a lawyer in criminal proceedings. The U. K. has all opted out of the latest Directive
on the rights of access to a lawyer in criminal proceedings. The reason that the
U. K. has opted out of the Directive is because of the ongoing cost cutting in the
1
Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on
the right to interpretation and translation in criminal proceedings
2
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the
right to information in criminal proceedings
91
Access to Justice
U. K. relating to the legal aid costs in the form of the Legal Aid, Sentencing and
Punishment of Offenders Act (clause 12). This clause 12 concerns the opportunity
to introduce at a later date secondary legislation removing the automatic right of
those arrested and in police custody to have access to a lawyer at a police station.
Currently everyone is entitled to free advice at the police station during the interview
in more serious cases. The clause 12 proposal would make it so legal advice at the
station would become means tested and only become available if the government
deems it to be in the interests of justice to have legal aid. It was the Police and
Criminal Evidence Act 1984 (PACE) that first secured the provision of legal aid
because of high profile miscarriages of justice by the police in the 1970s and 1980s.
It is increasingly evident from the emerging case law of the ECtHR that the ECHR
does not cover all aspects of an effective criminal defence. The ECtHR two-stage test
for the equality of arms, establishes that access to a lawyer is an integral element of
the right to a fair trial. The requirement of an effective defence and participation in
the ECtHR’s decisions have varying degrees of interpretation across the E. U. In both
Germany, Hungary, Italy and England and Wales there are significant shortcomings
when it comes to ensuring an effective defence for the defendant. In Germany
there is no statutory right to free legal assistance during the provisional detention.
Legal counsel is only provided after the first three months has lapsed. In Germany
and Hungary the lawyer has no right to be present during the police interrogation.
There are also practical impediments to access to justice in Hungary such as the fact
that travel to a detention facility is not covered by legal aid. In addition to these
discrepancies between the spirit of the ECHR and its application there have also
developed other limitations on the effective criminal defence. Tactics have developed
which are employed to emphasis the efficiency of the trial at the expense of the
defendant’s procedural safeguards or the use of pre-trial detention as a mechanism
by which to secure an admission of guilt.
When access to justice is more closely examined in the European context it is nec-
essary to address the ECtHR case law.
This principle is enshrined in article 6 of the ECHR and the Charter on Fundamental
Rights and Freedoms (the Charter) articles 47 and 48. These instruments stipulate
that the rights of individuals to access justice should be secured not only in rhetoric
but also in practice. This protection is seen as an obligation of the State. It is here
that the procedural and the substantive aspects of the right to a fair trial intersect.
92
Access to Justice
The right to access to court is not expressly laid down in Article 6, however, in the
case of Golder v. United Kingdom3 it was established that:
Taking all the preceding considerations together, it follows that the right
of access constitutes an element which is inherent in the right stated by
Article 6, paragraph 1.
This right of access to court was recognised by the ECtHR not to be absolute in
Philis v Greece4 . The ECtHR established that;
This right of access, however, is not absolute but may be subject to
limitations since the right by its very nature calls for regulation by the
State. Nonetheless the limitations applied must not restrict or reduce
the access left to the individual in such a way or to such an extent that
the very essence of the right is impaired.5
The ECtHR in its case law should not be viewed as forcing new obligations on
Member States. Rather it should be viewed that, Article 6 read in light of its object
and purpose of the overall Convention is to ensure respect for the general principles
of law.6
The right to access implies that the individual has the right to have their case
brought before a tribunal as described by Article 6 paragraph 1. The right of
(effective) access to court could be used as the standard against which it can be
measured whether the granting of legal aid should have been made under Article
6(3)(c). Additionally, this standard could also serve to indicate whether the State,
“should be held responsible for a manifest failure by a legal aid counsel to provide
effective representation.”7
The development of the ECtHR case law has shifted recently to recognising the fact
that the presence, or lack, of a lawyer at the interrogation stage can have an impact
on the overall fairness of the trial.
There is a need for the member states to work towards ensuring both procedural and
substantive rights to both victims and defendants in trials, in light of the Pupino8
case,
3
4
Application No. 12750/87; 13780/88; 14003/88, Judgment, Strasbourg, 27 August 1991
5
Application no. 12750/87; 13780/88; 14003/88, Judgment, Strasbourg 27 August 1991, para 59
6
Dijk et al., Theory and Practice of the European Convention on Human Rights, p. 419.
7
Ibid., p. 422.
8
C-105/03
93
Access to Justice
’In these exceptional cases, the Union legislature is supposed to grant

rights to individuals - the accused and the victims-in order to contribute
to mutual trust and thus mutual recognition between the Member States,
and the Court should arguably give a wide reading to those rights. In
such cases, the Court would not be directly pushing one of the aims of
integration (mutual recognition), but would be facilitating the creation
of the necessary conditions to achieve it (mutual trust).’9
One attempt at aiding the integration and mutual trust has been made by the
European Parliament and the Council proposing a directive on the strengthening
of certain aspects of the presumption of innocence and of the right to be present
at trial in criminal proceedings.This proposal was published in November 2013 by
the European Commission. The proposal has been welcomed by the member states.
Even though the Constitutions include the principle of the presumption of innocence
the practice is lacking in implementation. There is a prevalent problem of, “the use
of compulsory powers to obtain material evidence in violation of the privilege against
self-incrimination.”10
The right to effective participation is interlinked with the defendant being able to
express their individual autonomy. The right to an effective defence is necessary
in order to be able to have a public trial which is reached through an adversarial
process. The right to an effective defence fits right between these two requirements.
It acts as the conduit from which the access to justice requirements can be met. The
right to have effective legal assistance is recognised by the case law of the ECtHR
where they have held that the legal assistance that the defendant receives must
be effective This principle was set out in the case of Goddi,11 and also Ocalan12 .
Despite this fact the ECtHR has maintained that the way in which the lawyer
conducts themselves is a matter for both the client and the lawyer to discuss and
to decide upon. It is necessary that the defendant should not be unnecessarily and
unfairly burdened with the risk of ineffective representation. As such the ECtHR
has held that,
“States are required to intervene only if a failure by counsel to provide
9
A. Hinarejos. “Intergration in Criminal Matters and the Role of the Court of Justice”. In: Eur.
Law Rev. 36 (2011), pp. 420–430, p. 428.
10
A. Ashworth. “Self-incrimination In European Human Rights Law - a Pregnant Pragmatism?”
In: Cardozo L. Rev. (2008).
11
A 76, Judgment of 9 Apil 1984
12
Application No 63486/00, Judgment, Strasbourg,12 March 2003
94
Access to Justice
effective representation is manifest or sufficiently brought to their

attention.”13 (emphasis own)
As stated in the judgment in Imbrioscia the Member State is only required to inter-
vene, in the case of a lawyer being ineffective in their role, if a failure by the counsel
to provide effective representation is manifest or sufficiently brought to their atten-
tion. The illusive term effective representation needs to be clearly defined. The
ECtHR has helped to determine its definition by establishing what the defendant
need not show.
The defendant does not have to prove that they were prejudiced as a result of the
ineffective representation (see the case of Artico14 as authority in this matter) and
neither is it necessary that a damage resulted because of the said representation (see
the case of Alimena15 ).
The obligation to assess the effectiveness of legal representation is not placed on the
suspect. Rather, the ECtHR states that Member States should take the initiative
and establish monitoring systems to assess the effectiveness of the legal represen-
tation. Even though the ECHR may not specifically stipulate for this the right to
effective legal assistance it can be deducted from ECtHR case law.16
In the seminal case of Can v Austria17 , it was established that the right to counsel
begins from the moment one is charged. Article 6 (3) of the ECHR sets out those
rights and it is stipulated that when someone is charged that they are entitled
to these rights in particular.In addition to these minimum rights, the trial should
be adversarial in nature and not infringe the principle of equality of arms. The
case of Thorgeir Thorgeirson v. Iceland18 is a good illustration of this principle
of adversariality. The prosecutor was absent from certain parts of the trial so the
defendant argued that this meant that the trial had not conformed to the adversarial
requirements.The ECtHR did not find that the absence of the prosecutor affected
the adversariality of the trial as those parts of the trial that the prosecutor were
absent from related to statements being read out which the prosecutor already knew
the content of.
13
Imbrioscia v Switzerland, Application No. 13972/88,Judgment, Strasbourg, 24 November 1993
14
Application No. 6694/74, Judgment, Strasbourg, 13 May 1980
15
16
L. van Puyenbroeck and G. Vermeulen. “Towards Minimum Procedural Guarantees For The
Defence In Criminal Proceedings In The Eu”. In: ICLQ 60 (2011), pp. 1017–1038.
17
8 Eur. Ct. H.R. (ser. A) 14 (1986)
18
Applications No. 13778/88 Judgment, Strasbourg, 25 June 1992
95
4.1 Defining access to justice in light of the Salduz v Turkey decision
The ECtHR, in the watershed case of Salduz v Turkey19 , established what has now
become known as the Salduz Principle. The principle establishes the safeguards that
the member states should implement in their criminal procedure so as to ensure that
the right to access a lawyer is guaranteed to the defendant.
4.1 Defining access to justice in light of the Salduz v

Turkey decision
Access to justice is a multi-layered concept. The various levels of access, unfortu-

nately, present numerous obstacles that the defendant must over come. These levels,
without the aid of access to legal counsel, present for the defendant an infringement
of safeguards that the ECtHR has established.
The watershed case of Salduz v. Turkey20 , decided 6 years ago, established the
’Salduz principle’. The case concerned a 17 year old boy who was accused of par-
ticipating in an illegal protest and putting up protest placards. Both acts were
considered to be terrorist activities by the Turkish authorities. The applicant was
denied the right to a lawyer at the pre-trial investigative stage and made incriminat-
ing statements which were later relied upon in court by the prosecution. It was only
at trial that the applicant had the benefit of a lawyer. The ECtHR first held on the
26th of April 2007 that there had been no violation. The Grand Chamber took a
different view and determined that the appointment of the lawyer at the trial stage
did not undo the infringement of the overall fairness of the trial within the meaning
of Article 6. The applicant had been denied his right to justice and a fair trial
because the ECtHR held that Article 6 applies to pre-trial proceedings. The Court
held that Article 6 will normally require that the accused be allowed to benefit from
the assistance of a lawyer already at the initial stages of police interrogation as the
right to a fair trial should be practical and effective not theoretical and illusory. The
ECtHR stated that contracting states must bear this in mind when determining the
choice of application of the right to a fair trial.
This case brought about a shift in the focus of the trial. Salduz recognised that the
role of the lawyer is key in ensuring that procedural safeguards are adhered to. The
ECtHR distanced itself from the old test of determining whether the overall fairness
19
20
96
of the trial had been infringed. The old test stated that the question was whether
the restriction had been justified and if it was whether in light of the proceedings as
a whole it had not deprived the accused of a fair hearing the reasoning being that
even a justified reason is capable of, in certain circumstances, restricting the right
to a fair trial.21
The ECtHR then outlined the new three stage test which has now become known
as the Salduz principle.
The first limb of the test is that access to a lawyer must be granted from the first
available opportunity, that any interference with this right must not affect the overall
fairness of the trial. Secondly, if this right is restricted there must be compelling
reasons to restrict the right. Thirdly, if exceptional reasons to restrict the right exist
any such restriction whatever that be, “ ... must not have unduly prejudiced the
rights of the accused under Article 6.”22
It will ultimately be held that the rights of the applicant have been irretrievably
prejudiced when incriminating statements which were made during a police interro-
gation in the absence of a lawyer are later relied upon on and used for the basis of
a conviction.
Salduz was not the only case of the ECtHR which recognised that, “the right to
counsel [is] a fundamental right among those which constitute the notion of a fair
trial and ensur[es] the effectiveness of the rest of the foreseen guarantees of Article
6 of the Convention.”23
The case of Panovitz24 followed Salduz two weeks later at the ECtHR. It was held
in this case that,
“... the obstacles to the effective exercise of the rights of the defence
could have been overcome if the domestic authorities, being conscious
of the difficulties for the applicant, had actively ensured that he under-
stood that he could request the assignment of a lawyer free of charge if
necessary.”25
21
Salduz v. Turkey, Application No. 36391/02, Judgment, Strasbourg, 27 November 2008
22
Salduz v. Turkey, Application No. 36391/02, Judgment, Strasbourg, 27 November 2008
23
Pishchalnikov v. Russia, Application No. 7025/02, Judgment, Strasbourg, 24 September 2009,
para 78
24
Application No. 4268/04 (First Section) 11th December 2008
25
para 72, Application No. 4268/04 (First Section) 11th December 2008
97
It was from this statement that the European Parliament and Council later drew
the need to create uniformity in informing applicants of their right to a lawyer in
the form of the Letter of Rights.
Notably, the ECtHR adopts two approaches, the narrow approach which views that
an issue under Article 6 will only have occurred if in the absence of a lawyer the
suspect makes a confession or if the evidence (which is related relied upon in trial) is
obtained in the absence of a lawyer in such a way so as to trigger the application of
the Salduz principle. Alternatively, the ECtHR will apply a much stricter approach
where it will only hold that they have found a violation, “.... where the evidence
obtained without the lawyer has a bearing upon the conviction.”26
The cases since Salduz and Panovitz have continued to build upon the Salduz prin-
ciple. They also indicate that there is not uniformity with regards to the Salduz
principle’s application. In the recent case of A. T. v. Luxembourg27 the ECtHR is
being called upon to expand its meaning of legal representation and access to justice.
This case now provides the ECtHR with an opportunity to bring some clarity to the
limits of the Salduz principle. Clarity is needed with regards to which of the two
approaches (narrow or strict) should be applied.
In the case of Cadder v Her Majesty’s Advocate28 , the U. K. Supreme Court consid-
ered the cases of Salduz and Panovitz in determining whether the Scottish procedure
following arrest was compatible with the ECHR. In this particular case the accused
was questioned in the absence of their lawyer and made admissions which were later
relied upon by the prosecution against him.
Lord Hope stated that,
“the contracting states are under a duty to organise their systems in
such a way as to ensure that, unless in the particular circumstances of
the case there are compelling reasons for restricting the right, a person
who is detained has access to advice from a lawyer before he is subjected
to police questioning.”29
Since this decision the U. K. Supreme Court has also ruled in Ambrose v. HM
26
Fair Trials International, Third Party Intervention in the European Court of Human Rights,
Application No. 30460/13, between A.T. v. Luxembourg, written comments by Fair Trials
International March 2014
27
Application No. 30460/13
28
[2010] UKSC 43
29
para 48, Cadder v Her Majesty’s Advocate [2010] UKSC 43
98
Advocate30 that the Salduz line of jurisprudence does not apply to pre-detention
questioning and that the use of the “fruits of questioning of an accused without
access to a lawyer” do not necessarily amount to a violation of Article 6.31 In
Dayanan v Turkey32 the ECtHR reiterated its position that , “an accused person is
entitled, as soon as he or she is taken into custody, to be assisted by a lawyer, and
not only while being questioned.”33 The ECtHR determined that in this particular
case the absence of a lawyer when the suspects statement was being taken by the
police undoubtedly affected the overall fairness of his trial as the statement was
then used as the main evidence in the case against him. In Pishchalnikov v Russia34
soon after the Salduz and Panovitz decisions, the court stated that the denial of
legal assistance would have dire consequences for the suspect as they would be, “ ...
unable to make the correct assessment of the consequences his decision to confess
would have on the outcome of the criminal case.”35 The U. K. line of judgments are
at odds with the ECtHR when it comes to the provisions of legal assistance.
The ECtHR has established in its jurisprudence that where there are restrictions
upon the right to access legal assistance without compelling reasons they will con-
sider that there has been an irrefutable presumption of a violation of Article 6. In
these circumstances there will be no need to analyses the overall fairness of the pro-
ceedings if the first position has been established. There has of yet to be any case
law from the ECtHR on those cases where the restriction has been with compelling
reasons.Cases with compelling reasons would presumably only be allowed if they
could pass the overall fairness of the proceedings test. These cases would also have
to meet the Salduz principle test.It would be necessary to show evidence that there
had been respect for the rights of the defence and that the use of the statements as
a sole basis for a conviction did not occur.
It is with these cases though that is becomes quickly evident that the ECtHR has
not been applying its own case law uniformly. There is sometimes reference to the
confession made in the absence of the lawyer and then other times reference to the
making of an incriminating statement in the absence of their lawyer. This then leads
30
[2011] UKSC 43
31
Her Majesty’s Advocate v P [2011] UKSC 44
32
Application No. 7377/03, Judgment, Strasbourg, 13 October 2009 (FINAL 13/01/2010).
33
Dayanan v Turkey, Application no. 7377/03, Judgment, Strasbourg, 13 October 2009 (FINAL
13/01/2010)
34
Application no. 7025/04, Judgment, Strasbourg, 24 September 2009 (FINAL 24/12/2009)
35
Pishchalnikov v Russia, Application no. 7025/04, Judgment, Strasbourg, 24 September 2009
(FINAL 24/12/2009), para 85
99
to confusion over the application of the law.

This is most apparent in the case of Ireland where the Irish Supreme Court has yet
to recognise the Salduz principle in its case law. The Supreme Court of Ireland held
in the case of Lavery36 that there is no absolute right to have a lawyer present in
the police interrogation. The decision of Lavery was followed by Gormley which has
made it perfectly clear that the Irish state should overturn the case of Lavery. This
position as well as statement of the Irish Supreme Court is even more shocking in
light of the fact that the Irish state has chosen to opt out of the E. U. Directive on the
right to access a lawyer in criminal proceedings. This is just one example of where
there is a prevalent disconnect between the letter and word of the ECHR and its
practical and procedural application by the member states. Since this decision the
Supreme Court has heard two cases together on appeals. Both of these concerned
similar issues; DPP v White37 and DPP v Gormley38 . In DPP v White the Irish
Supreme Court ruled that the defendant in police custody did not have the right to
legal advice after the police had demanded forensic samples from them as the suspect
was legally obliged to give them and this did not give rise to a legal obligation to
have a lawyer present. As such an infringement was not found. In the similar
case of DPP v Gormley the defendant who had requested that a lawyer be present
before they were interrogated was interrogated in the absence of a lawyer and made
incriminating admissions. In considering this case the Irish Supreme Court placed
particular emphasis upon the jurisprudence of the ECtHR and the Salduz decision.
The Irish Supreme Court in its analysis of the law determined that it had never
before considered if the pre-trial investigative stage formed part of the whole trial.
The Irish Supreme Court recognised that it was necessary for Irish law to come into
line with the ECtHR case law and adopted the Salduz principle. They concluded
that events that took place in the police station came within the meaning of the
trial. Since this decision of the Supreme Court or Ireland it has been held that the
present law in the case of Lavery39 would not survive a challenge.
The cases all stem from the fact that the ECtHR has made a distinction between
admissions made prior to access to a lawyer and where objective evidence is taken
36
Lavery v. The Member In Charge, Carrickmacross Garda Station [1999] IESC 29; [1999] 2 IR
390 (23rd February, 1999)
37
[2014] IESC 17
38
[2014] IESC 17
39
Lavery v. The Member In Charge, Carrickmacross Garda Station [1999] IESC 29; [1999] 2 IR
390 (23rd February, 1999)
100
such as samples. It is this very distinction which should be clarified so as to remove

the confusion. In order for the taking of samples to amount to an infringement of
Article 6 it must be “sufficiently invasive and unnatural” to amount to breach.
As mentioned above the directive on the right to access to a lawyer came about as
a result of Salduz. Article 3 of the Directive codified the three steps of the Salduz
principle; 1. access to a lawyer without undue delay before they are questioned
by the police or by any other law enforcement or judicial authority, 2. access to a
lawyer upon the carrying out of an investigative step, and 3. access to a lawyer after
deprivation of liberty. These three steps are based upon the general presumption
that the right to access a lawyer is a real and effective right. What the ECtHR
has yet to consider is the intersection between effective legal counsel and the plea
bargain.
4.1.1 The right to assistance of counsel
Under the first step of the Salduz Principle the right to assistance of counsel has
to be considered. The right to representation by counsel is a human right that is
continuously infringed at all stages of the trial process. This element of the right
to a fair trial is always at tension with the interests of the state, and the police
who are seeking answers for a crime. The pressure of wanting results can result
in the lack of adherence to the safeguards in the criminal justice system. Without
proper and effective counsel, as defined by Salduz, a key human right is infringed.
Guaranteeing the right to counsel is not enough to secure that this right will be
protected throughout all the stages of the criminal procedural justice system. The
member state constitutions provide varying degrees of protection of the right to
counsel in the trial proceedings only or at the detention and the trial.40 It is not
obvious from the wording of many of the constitutions if they guarantee the right
to counsel.41
The right to appointment of counsel in case of indigence is not always an assured
right. The right to representation is key to and at the very least the bare minimum
40
Bulgaria ch. 2, articles 30(4) and 54, Hungarian ch. XII § 57(3), Italy article 24, Netherlands
ch. I, article 18 (1), Portugal pt. 1, § II, ch. I, article 32(3), Romania ch. II, article 24(1)(2)
(only at trial), Spain ch. II, articles 17(30, 24(2) and the U. S. Constitution amendment VI.
41
M. C. Bassiouni. “Human Rights in the Context of Criminal Justice: Identifying International
Procedural Protections and Equivalent Protections in National Constitutions”. In: Duke J.
Comp. & Int’l L. 3 (1993), pp. 235–297.
101
of which should be guaranteed in order to ensure that a fair trial is ensured to the
indigent defendant.
The ICCPR and the ECHR secure the appointment of counsel for the indigent.42
Intersecting with the right to assistance of counsel is also the right to choose one’s
own counsel.
The right to counsel of one’s choice is an element of the Article 6 (3) (c)
“to defend himself in person or through legal assistance of his own choos-
ing or, if he has not sufficient means to pay for legal assistance, to be
given it free when the interests of justice so require.”
This poses an interesting problem for the United Kingdom in terms of its obligations
under Article 6 (3) (c).
The application of Article 6 (3) (c) has become controversial in the United Kingdom
with the reforms to the legal aid provisions. Chris Grayling, the Justice Secretary,
has announced that “convicted criminals should be made to pay for their own legal
costs.”43
This is the first attempt of its kind to make criminals pay towards the overall running
costs of the court. The Ministry of Justice, among many other proposals, is seeking
to introduce a method of tendering for contracts to carry out criminal legal aid
work in courts. The criticism of this proposal is that it removes the centuries old
right to select one’s own counsel. This right to be able to choose your own counsel
has important ramifications for the plea bargain. The reason being is that if your
counsel is appointed to you by the court then it significantly reduces the ability of
the defendant to be assured an impartial process.
The new law concerning legal aid, the Legal Aid, Sentencing and Punishment of
Offenders Act 2012 removes the right to choose one’s own counsel. This removal of
the right to choose one’s own counsel arises from the fact that their will be a limited
number of service providers who will have the monopoly of providing legal aid in a
particular area. In this way it will be virtually impossible for a client to maintain
or even establish a relationship with the legal counsel.
42
as well as the consitution of Italy pt. I tit. I, article 24
43
“Chris Grayling: criminals should be made to pay their legal costs. Justice secretary says
convicted criminal may have to pay their own legal defence costs, as part of cuts to legal aid”
by Owen Bowcott, Tuesday the 9th of April 2013.
102
This encapsulates in the most basic terms the right to defence. The indigent de-
fendant is most often the victim of the infringement of Article 6 (3) (c) as they are
appointed a lawyer over whom they very rarely have any choice .
The E. U. recognises the right to equal recognition before the law. This is protected
in 14 constitutions of the member states of the E. U.44 allowing for access to counsel.
Despite this protection access to justice is limited for those who cannot afford legal
assistance of their own. In such circumstances counsel is appointed. It is now clear
from the ECtHR case law that there is an obligation upon the member states to
provide a mechanism by which defendants can access justice via legal assistance.
In Quaranta v Switzerland45 and Benham v U. K. 46 the ECtHR found in both of
these cases that where deprivation of liberty is at risk then it is in the interests of
justice to have and provide free legal assistance.
The ECtHR through its jurisprudence has set out several guarantees for ensuring
that individuals are provided with free legal assistance in criminal trials in order to
ensure that all of the fair trial provisions are applied equally to everyone. It is also in
recent years that it can be seen that the CoE has become increasingly concerned with
access to justice.47 One mechanism by which to ensure this is legal aid. Defendants
in plea bargains are normally the recipients of legal aid so the relationship between
legal aid, access to justice and plea bargaining are intrinsically linked.
According to article 6(3)(c) the provision of legal aid is not unconditional. The
ECtHR has stipulated three areas that must be taken into consideration when de-
termining whether legal aid should be granted or not, the first is the seriousness
of the offence and the severity of the potential sentence, secondly, the complexity
of the case and thirdly, the social and personal situation of the defendant. These
requirements were set out and stipulated in the case of Quaranta48 .
“The ECtHR has held that the suspect does not have to prove beyond
all doubt that he lacks the means to pay for his defence.”49
44
Bassiouni, “Human Rights in the Context of Criminal Justice: Identifying International Proce-
dural Protections and Equivalent Protections in National Constitutions”.
45
Judgment of 23 April 1991, Series A, No 205
46
Judgment of 10 June 1996, Reports 1996-III
47
The Right to Access to Court under the Caselaw of the European Court of Human Rights –
Topic Brief by Vessela Terzieva, http://web.worldbank.org/WBSITE/EXTERNAL/TOPICS/
EXTLAWJUSTINST/0„contentMDK:20760742~menuPK:1990386~pagePK:210058
~piPK:210062~theSitePK:1974062,00.html, accessed on the 17th of January 2013
48
Judgment of 23 April 1991, Series A, No 205
49
Pakelli, A 64, Judgment of 25 April 1983 paragraph 34
103
Member States are free to determine the way in which legal aid will function within
their own independent jurisdictions so long as it remains available for all those when
it is demanded in the interests of justice. This was reiterated in the directive of the
Council on legal assistance and legal aid .
There are divergent practices across the E. U. member states in terms of both
assuring and informing the defendant of their procedural rights. These procedural
rights include the right to be informed of the charge being brought against them and
also to have access to the evidence which is the basis of the charge and accusations
being made against them. These procedural rights take the form of the right to
remain silent and the right to have access to the file.50 The right to have contact
with a lawyer after arrest is a legal obligation placed upon all of the Member States.
The right to be informed of this right has not always been forthcoming amongst
the member states. This information is not always given after arrest. The same
issue applies to having information on the right to have legal aid. There is no legal
obligation to inform the suspect of their right to legal assistance (partially) free of
charge. All of these factors have far reaching consequences for the plea bargain.
One way to avoid this problem of appointing legal representation and informing the
suspect of their right to legal aid is to state that the applicant has waived their right
to legal representation. This act of waiver is a controversial issue which is addressed
below.
4.1.2 The two stage test of waiver
Waiver of access to and representation by a lawyer are particularly pertinent ques-

tions at steps 2 and 3 of the Salduz Principle.
The ECtHR when considering the question of waiver has stipulated two requirements
which must be satisfied in order for the waiver to be deemed as being validly made
by the applicant. The first requirement is that the legal advice be requested before
the waiver was made and secondly if it is not found that a waiver was given then the
ECtHR must determine whether or not the fairness of the proceedings have been
compromised by the ’use’ of an incriminating statement for a conviction within the
meaning of the Salduz principle. It has yet to be seen how this two-stage test will
50
Puyenbroeck and Vermeulen, “Towards Minimum Procedural Guarantees For The Defence In
Criminal Proceedings In The Eu”.
104
be applied to the plea bargain as no cases have been brought concerning this issue.
These questions become important to answer in light of the fact that since the
case of Salduz was decided the E. U. Directive on the right to access a lawyer has
been enacted. In its Article 9 the directive refers to waivers. It places safeguards
around the use of waivers and it states that any waiver that is made must be given
“voluntarily and unequivocally.” In addition to these requirements concerning the
giving of a waiver the ECtHR has stated that they require concrete evidence that
the waiver was given knowingly and intelligently. This directive enshrines the right
to access a lawyer (in its Article 3) and reinforces the fact that the access to a lawyer
is the right from which all other rights can then be unlocked and flow. The ECtHR
must make it clear that;
“At its most scrupulous, the Court’s case-law suggests that a violation
will be found unless the national decisions show that the decision on the
merits of the case is free from any contamination by the earlier breach.”51
This is the approach that should be adopted in addition to the Salduz principle
when determining if a breach has occurred. The ECtHR must be able to satisfy
themselves that the effects of the restriction have been canceled out and that any
significant disadvantage has been accounted for by the domestic national legislation.
If this significant disadvantage cannot be remedied by the national legislation then
a violation of Article 6(3)(c) ought to be found.
It must be established beyond a shadow of doubt that the accused received all of the
information about the date and schedule, also the information must be given and
received in a language which the accused can understand, of the trial in order for
their waiver to be present at the trial to be valid. This is also a similar requirement
which must be established with pleas, that the defendant was informed of the plea
offer as well as the consequences of accepting the plea offer.
In the case of Van Geyseghem v Belgium52 it was mentioned that the ECHR confers
rights and not obligations upon the individuals in reference to the right to a fair
trial. In this kind of a situation it is up to the individual to choose whether they wish
to exercise their right to a fair trial they are not obligated to do so. The question
51
Fair Trials International, Third Party Intervention in the European Court of Human Rights,
Application No. 30460/13, between A. T. v. Luxembourg, written comments by Fair Trials
International March 2014, para 47
52
1999-II Eur. Ct. H. R. 128, 145
105
of whether that choice is a real one made with real options and choices may not be
the case for everyone.
Due to the question of margin of appreciation the ECtHR has not been too prescrip-
tive in the application of the ECHR to the question of the provision of legal aid to
indigent defendants as well as securing their representation at all stages of the trial
process. Despite this leeway afforded to member states, the case of Poitrimol53 , also
sets out that
’Since the right to be defended by a lawyer is a fundamental element
of a fair trial, the suppression of this right would be a disproportionate
sanction.’54
The ECHR maintains that nothing in the ECHR should be construed so as to be
interpreted as derogating from any of the human rights and fundamental freedoms
which are to be ensured by the laws of the Member States or any other agreement
which they are party to.55
In the ECtHR decision in Tibor Cierny v Slovakia56 the court had to consider the
question of whether a waiver of the right to a lawyer and the right to a silence
were effectively, knowingly and willingly given. The ECtHR then stated that if it
was found that the waiver was not given effectively they would need to determine
whether there were any domestic remedies which could protect the applicant’s over-
all fairness of their trial. The ECtHR stated this as they wanted to establish if the
institutional framework existed whereby the infringement could then be rectified.
This is important as rights should be more than “theoretical and illusory.” This test
established by the ECtHR bears striking similarities with the test for determining
if a defendant received effective legal advice before they accepted a plea bargaining.
Both tests require that evidence be shown that the applicant has waived their right
knowingly and intelligently to legal representation and assistance. In these circum-
stances the court is then bound to find a violation of Article 6 where a waiver has
not been given effectively and where the use of (but not limited to) the incriminat-
ing statement on the basis of the conviction has not been completely canceled out
by the safeguards of the trial process. It is the institutional framework which will
53
Application No. 14032/88, Judgment, Strasbourg, 23 November
54
M. Bose. “Harmonizing Procedural Rights Indirectly: The Framework Decision on Trials in
Absentia”. In: N. C. J. Int’L & Com. Reg. 37 (2011), pp. 489–510.
55
Convention for the Protection of Human Rights and Fundamental Freedoms article 53
56
Application No. 6177/2010
106
4.2 Legal Aid
form a determining factor in the ECtHR decision. Because it is necessary for the
institutional framework to exist within which the defendant can have their rights
remedied.
4.2 Legal Aid
Steps 1, 2, and 3 of the Salduz Principle become instantly unobtainable for a defen-
dant who does not have the means to access legal assistance.
The above mentioned right to legal representation is nonsensical if you do not possess
the means by which to access that right.
It has to be emphasised from the outset that no amount of legal aid will be able to
make up for the lack of structure and proper safeguards in the criminal procedural
fields.
Recommendation No. R (93) 1 of the Committee of Ministers to Member States on
Effective Access to the Law and to Justice for the very Poor (hereinafter referred
to as Rec. No. R (93) 1)was adopted by the Committee of Ministers on the 8th
of January 1993 at the 484ter meeting of the Minister’s Deputies. The Rec. No.
R (93) 1 formally recognises that there are indeed identifiable barriers that prevent
certain categories of people from accessing justice. These barriers are not just within
the justice system itself but are rather societal problems. These are problems that
we cannot expect that access to justice will magically rectify. There is an endemic
problem with the way in which society has structured itself, in that “the poor will
always be with us”.
Rec. No. R (93) 1 in its preamble notes that:
Reaffirming that attachment to human rights is linked to respect for
human dignity, especially as regards access to the law and to justice for
the very poor;
This statement recognises the importance of respecting the human dignity of the
very poor by providing them with access to the law and justice.
The question of poverty and access to equal justice was addressed by Mauro Cap-
pelletti in his book“Towards Equal Justice: A Comparative Study of Legal aid in
Modern Societies”. Cappelletti highlights the development of the varying views of
107
4.2 Legal Aid
how to see poverty. In the early 19th Century poverty was viewed as being some-
thing which was an inevitable condition of humanity and indicative of an individuals
own moral character.57 The transition from this point of view occurred in the 20th
century when poverty was viewed as being rather an economic phenomenon over
which poor individuals are deemed to have no control and neither responsibility
over their situation.
Cappelletti and Garth developed a theory of three waves when it came to the for-
mulation of legal aid. They defined the first wave as being the actual development
and advent of legal aid itself. It is said that legal aid first developed after WW
II in the western world as a means by which to provide a more focused access to
legal representation in courts for the poor of society who could not otherwise afford
their legal representation. The second wave focused on the public interest which
included the common well-being, general welfare of society. It is this area of the law
which is generally understood to include civil representation through legal aid by
some organisations aimed legal aid provided for criminal defense. The third wave is
where the policies are put into practice. The legal aid provision can indeed become
a reality. The third wave is concerned predominantly with the means by which
accessibility to justice can be secured.
The right to access to justice in criminal law and provisions available of legal aid
are important but meaningful only if the quality of the justice itself is below par.58
Easy, access to legal aid cannot be expected to remedy on its own the equilibrium of
access to justice. It must always be legal aid and the removal of further barriers that
act as obstacles to people actively engaging in the criminal justice legal system.59
It is not disputed that legal aid is central to enabling these changes to take place
but other methods need to be employed in order to help this become a reality.60
57
M. Cappelletti and J. Gordley. Toward Equal Justice a Comparative Study of Legal Aid in
Modern Societies: Text and Materials. Studies in comparative law. A. Giuffre, 1981. url: http:
//books.google.hu/books?id=JOTDkQEACAAJ, p. 756.
58
Riding the Third Wave: Rethinking Criminal Legal Aid within an Access to Justice Framework,
Albert Currie
http://www.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_5/p2.html accessed on the 11th of
January 2013
59
Albert Currie
January 2013
60
Albert Currie
108
4.2 Legal Aid
Access to legal aid in Europe centres around the tension between finances versus
maintaining the equality before the law. Andrew Sanders, makes the point that it is
important for any criminal justice system to be fair and democratic but the resources
must be shared amongst other equally important services as well. He states that the
statement that “you can’t put a price on justice” is a fallacy and that it is something
that happens all of the time. Rather we should not be concerning ourselves about
the fact that we do but rather with what priority do we give to efficiency?61 In the U.
K. experience it is common for alternative dispute resolution to be seen as a viable
option for those poorer defendants to access justice, particularly in civil cases.
These alternative methods of self-help seem to suggest that those who cannot afford
legal representation have been abandoned rather than empowered.62 The goal of
reducing costs for government spending in supporting legal aid services is in part
to reduce the extent of the need for adversarialism however this approach does lead
to an encouragement of surrendering one’s right to a trial. In the context of plea
bargaining it is worrying that even though this action of waiving one’s right to a
trial does not always infringe due process, there is the concern that if they accepted
the plea bargain that they might be in a better off position.
Access to justice and miscarriages of justice are never far from one another. They
are the two anchors which keep the tension of the criminal justice system tight.
If one wanes in its support it creates a hole through which defendant’s can fall.
Miscarriages of justice can be defined in the following way
“A “miscarriage of justice,” also known as a “failure of justice,” is de-
fined as “[a] grossly unfair outcome in a judicial proceeding, as when a
defendant is convicted despite a lack of evidence on an essential element
of the crime.”63
It is the position of this thesis that plea bargaining, without effective and appropriate
safeguards is a “failure of justice” for the defendant.
It was only after a series of miscarriages of justice in the U. K. , such as the Birm-
January 2013
61
A Sanders. “Core Values, the Magistracy and the Auld Report’”. In: 29 J. of Law and Society
(2002), p. 327.
62
R. Moorhead and P. Pleasance. “After Universalism:Re-engineering access to justice”. In: ed. by
R. Moorhead and Pascoe Pleasence. Blackwell Publishing, 2003. Chap. Access to Justice after
Universalism: Introduction, pp. 1–9.
63
Black’s Law Dictionary 1019 (8th ed. 2004).
109
4.2 Legal Aid
ingham Six and the Guildford Four that the Royal Commission on Criminal Justice
was established to suggest ways in which to avoid such miscarriages of justice from
occurring again.
The report of the Commission resulted in the disclosure of the prosecution being less
and defence having to disclose more so as to avoid the use of the tactic of “ambush
defences”. It was with the advent of the Commission’s report that the encouragement
of plea bargaining was introduced. Its introduction marked the beginning of finding
a means by which to expedite and keep down the costs of the trials.64 Plea bargaining
has always been a part of the criminal trial process but now with the Commission’s
report it became an integrated and formal part of the criminal procedure within the
United Kingdom.65 It was almost as if the defendant was indeed being encouraged
not to exercise their right to trial let alone a fair and just one.66
4.2.1 The right to counsel in the U. S.
The sixth Amendment of the U. S. Constitution provides the guarantee of counsel

and for state prosecutions, whereas the fourteenth Amendment, provides for, due
process and the equal protection, clauses.67 In the case of Powell v. Alabama in
1932 it was stated that,
“the right to be heard would be, in many cases, of little avail if it did
not comprehend the right to be heard by counsel.”68
Commentators have suggested that the U. S. Supreme Court should look to ECtHR’s
case law. More specifically the case of Airey’s decision to give civil litigants the right
to counsel.69 The U. S. is not bound by these decisions, however, it can take them
into consideration as it has done in other of it decisions.
An avid critic of the U. S. system is Justice Earl Johnson Jr. who once raised the
question:
64
J. S. Hodgson. “The Future of the Adversarial Criminal Justice in 21st Century Britian”. In:
N.C. J. Int’l L. & Com. Reg. 35 (2010), p. 320.
65
Ibid.
66
Ibid.
67
D. L. Rhode. “Access to Justice”. In: Fordham L. Rev. (2001), pp. 1785–1819.
68
287 U. S. 45, 68-69 (1932)
69
J. S. Karich. The Constitutional Divide: The United States and Europe’s Diverging Interpreta-
tions of Equality under the Law applied to Civil Cases involving Fundamental Rights. Tech. rep.
Institute for Cultural Diplomacy, 2010, pp. 1–16.
110
4.2 Legal Aid
“Will there come a time when the issue addressed in Lassiter is no longer
framed solely by the precedents and constitutional values generated by
the U. S. Supreme Court, but also takes account of a broader global
consensus about the meaning of fundamental concepts like a ’fair hearing’
or ’due process’, ’equality before the law’ or ’equal protection of the
laws?’ In other words, when, if ever, will the U. S. Supreme Court begin
looking at the decisions of the high courts of other nations and how they
have interpreted constitutional concepts and indeed language also found
in our constitution?”70
The U. S. has yet to provide an answer to this question. There are still a plethora
of cases which could help to inform the U. S. system but there is resistance against
this approach. Until that time the U. S. Supreme Court will continue to apply its
own law with little use for comparative analysis.
The U. S. system for regulating legal aid is heralded as being innovative. The
U. S. ’s system regulates legal aid through a system of computers whereby the
legislation can be monitored. This method of operating legal aid is not present in the
systems of England and Germany or any other nations. Despite initial impressions
of the system being independent and transparent the U. S. model of private lawyer
programs enabling the choice of one’s own lawyer is illusory. For the sake of saving
money, people are willing to relinquish a choice if the services cost much less.71
Attempts were made, via the establishment of the Assigned Counsel Systems to pro-
tect poor people from below par legal representation or no representation at all. The
Assigned Counsel System established standards which helped to guide the function-
ing and practising of this system. One such standard is standard 2.1 which provides
that the main goal is to ensure the provision of quality representation (standard 2.1.
(a)). This quality representation which is provided must be ’....equivalent to that
provided by a skilled, knowledgeable and conscientious criminal defense lawyer to
paying client’s. Assigned counsel are also required to provide,’... quality representa-
tion in all relevant legal proceedings involving their client’s.
The Standards determine the financial eligibility of an individual who will be eligible
for legal aid provisions under Standard 2.3. This standard provides that any person
70
Karich, The Constitutional Divide: The United States and Europe’s Diverging Interpretations of
Equality under the Law applied to Civil Cases involving Fundamental Rights.
71
Cappelletti and Gordley, Toward Equal Justice a Comparative Study of Legal Aid in Modern
Societies: Text and Materials, p. 756.
111
4.2 Legal Aid
who cannot afford and employ a lawyer due to hardship reasons will be eligible for
assigned counsel.
4.2.1.1 The Sixth Amendment
The Sixth Amendment sets out the following protections as well as requirements.
In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime shall have been committed, which district shall have
been previously ascertained by law, and to be informed of the nature
and cause of the accusation; to be confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor, and
to have the Assistance of Counsel for his defence. (emphasis my own)
It is by adhering to these principles that one is secured the right to a fair trial.
Additionally, the 14th Amendment section 1 sets out the protection of due process
of law as well as the equality of man before the law:
All persons born or naturalized in the United States, and subject to
the jurisdiction thereof, are citizens of the United States and of the state
wherein they reside. No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States; nor
shall any state deprive any person of life, liberty, or property, without
due process of law; nor deny to any person within its jurisdiction the
equal protection of the laws. (emphasis my own)
Besides the constitutional protections for the right to a fair trial and legal counsel
the Federal Rules of Criminal Procedure also provide in their Rule 44 for the right
to and appointment of counsel. In Rule 44(a) the right to be appointed counsel is
defined as being an entitlement for the defendant who is unable to obtain counsel
themselves. Once awarded and appointed counsel the defendant is then entitled to
their representation at every stage of the proceedings unless the defendant waives
the right. Rule 44(b) provides that the appointment procedure and implementation
of the right to counsel is governed by the federal law and local court rules
The U. S. case law has recognised that the allocating of legal representation is not
enough. As the ECtHR in Salduz established, the lawyer must provide an effective
defence.
112
4.2 Legal Aid
4.2.1.2 Effective defence
The case of Betts v Brady72 in 1942 set the tone for the role of lawyers in court cases.
It was not until 21 years later that the dissenting opinion in the case of Gideon v
Wainwright73 prevailed. In the case of Gideon v Wainwright74 which overruled the
previous decision of Betts v Brady75 , it was stated that free legal representation
should be provided where it would be in the interests of justice to do so. This
decision resulted in considerable debate in the court. Only one year before the
case was decided the ruling in Betts v Brady was still law. The right to counsel in
criminal cases was still being wrestled with. 76 The decision in Gideon is heralded as
being the watershed case for indigent defendants. The case does not actually say or
add anything new to the toolbox of the criminal defense lawyer. It simple reiterates
in perhaps stronger terms that the mandate of the constitution has not changed.
Gideon sets out what is stated in the constitution and in that sense there is nothing
at all extraordinary nor controversial about the case of Gideon. Fifty years later the
indigent defendant is still fighting for their constitutional right to counsel.
On the same day that the case of Gideon v Wainwright was decided the case of
Douglas v California77 was being considered. Douglas v California reaffirmed that
the “Sixth Amendment’s guarantee of counsel is mandatory, not permissive.”
In 1972 the case of Argersinger v Hamlin78 (following on from Gideon v Wainwright
and Douglas v California) did as much to resolve ambiguities as it did to limit
the access to legal representation. Argersinger v Hamlin set out that no defendant
could be imprisoned for any offence whatever its classification unless they had been
represented by counsel at the trial. Despite this the Supreme Court also went
onto say that counsel was only necessary in those cases where imprisonment was a
“possible result”.
Argersinger v Hamlin, was followed by the case of Scott v Illinois79 which circum-
scribed the case of Argersinger v Hamlin when it stated that the right to counsel
72
316 U. S. 455 (1942)
73
372 U. S. 335 (1963)
74
372 U. S. 335 (1963)
75
316 U. S. 455 (1942)
76
Looking Back on Gideon v Wainwright By Peter W. Fenton & Michael B. Shapiro,
http://www.nacdl.org/Champion.aspx?id=24994, accessed on the 18th of January 2013
77
372 U. S. 353 (1963)
78
407 U. S. 25 (1972)
79
440 U. S. 367 (1979)
113
4.2 Legal Aid
only applied to those cases of actual imprisonment rather than in those cases where
imprisonment is a possibility. This was a further narrowing of the application of the
Sixth Amendment rights for indigent defendants. An artificial line has been drawn
between those cases in which imprisonment is actual versus those in which it is pos-
sible. Your right to counsel is then dependant upon what side of the line you fall.
It then becomes a question of luck. The original intention of the Sixth Amendment
right would surely not have been to create such ambiguities in the applying of the
individual’s constitutional right(s).
These cases also concerned the question of what constitutes an effective defence. In
that a defence can only be effective if one has access to a lawyer and that lawyer is
allowed to do their job unhindered.
After the progressive movement of the Warren court came the U. S. Supreme Court
decision of Strickland v Washington80 which set out that not only should indigent
defendants have the right to free legal representation but that is should be effective
counsel. The case was also decided in light of plea bargain offer. Effective counsel
was defined by the quality of the representation that is provided by the counsel.
The effectiveness of the counsel was determined in light of the Sixth Amendment.
The case of Strickland v Washington interpreted the Sixth Amendment as recognis-
ing:
“the right to the assistance of counsel because it envisions counsel’s play-
ing a role that is critical to the ability of the adversarial system to pro-
duce just results.”
The case not only set out clearly that the quality of free legal representation matters
it also created a two pronged test which the defendant would have to satisfy if they
wanted to alleged that the legal advice and representation that they had received
was below that which, was acceptable of efficient representation when accepting a
plea bargain. The two pronged test places an obligation upon the defendant to show
that the counsel’s representation fell short of that which is acceptable.
The two following elements must be proved by the defendant:
1. the defendant must show that the “counsel made errors so serious that counsel
was not functioning as the ’counsel’ guaranteed by the Sixth Amendment”;
80
466 U. S. 668 (1984)
114
4.2 Legal Aid
2. the defendant must show that, “counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is unreliable”.81
The test set out in Strickland v Washington goes in the opposite direction of the
spirit of Gideon v Wainwright. The decisions since Gideon v Wainwright have been
back peddling defense rights. Part of the problem with the decision in Gideon v
Wainwright was that it did not set out the way in which this free legal counsel
should be provided. As such this allowed the Supreme Court to reinterpret the
meaning and application of the Sixth Amendment.
Economic hardships have led to cuts in funds for lawyers. Cuts in vital funding and
over criminalisation have put huge burdens on the criminal justice system making
the crisis even worse. As a result of these demands the U. S. has developed the meet
and plead practices (plea bargaining) which rob indigent defendants of their Sixth
Amendment rights.
The impact of meet and plead scenarios was highlighted in the case of Padilla v
Kentucky82 .
4.2.1.3 Padilla v Kentucky
The case of Padilla v Kentucky83 concerns Jose Padilla a permanent resident of

the U. S. but not a citizen. Jose Padilla was found in possession of an illegal
substance which is classified as an federal offence. As it was held to be an offence
of such severity deportation was almost an inevitability due to the classification of
the crime. This case illustrated the danger of the “meet and plead” type scenarioes
where the defendant is not fully informed of the possibility of being deported if
they plead guilty to their charges. Jose Padilla appealed the decision handed down
stating that if he had had proper legal advice then he would not have pleaded guilty
in the circumstances to the charges being brought against him.
Padilla v Kentucky really brought to the fore the converging opinions over how the
right to counsel as contained in the Sixth Amendment ought to be interpreted. It is
a debate that is still raging not just in the U. S. but also in Europe as well. Up until
Padilla v Kentucky there had been three different opinions with regards to how far
the application of the Sixth Amendment ought to apply.
81
466 U. S. 668 (1984)
82
130 S. Ct. 1473 (2010)
83
130 S. Ct. 1473 (2010)
115
4.2 Legal Aid
The first opinion was that the Sixth Amendment protects against prosecution in
those areas where it is only direct criminal consequence of a conviction and not to
collateral consequences. The second view is the most extreme view in that the Sixth
Amendment applies to all circumstances of a conviction whether direct or collateral.
The third view which has been most widely adopted by the lower courts in the U. S.
is that the Sixth Amendment does not generally apply to collateral consequences but
that it does apply to affirmative misrepresentations regarding those consequences.
Unfortunately the Padilla v Kentucky case did nothing to resolve these conflicting
positions. The Court did not choose one of these previously commonly held posi-
tions. Rather the court just extended the application of the Sixth Amendment to
deportation and other ’unique’ cases, creating a fourth category.
Padilla v Kentucky is the first in the series of cases that must be considered when
discussing the issue of the quality of and legal representation. In this case the duties
of the counsel were extremely broad. The importance of Padilla v Kentucky is
that it cleared up the law in areas in which it was unambiguous. It was reaffirmed
that lawyers must advise their criminal clients that deportation “will” result from a
conviction.
4.2.2 Access to counsel and Legal Aid in the United Kingdom
The U. K. sees the right of access to court as qualified. This position helps to explain
the U. K. ’s aversion to the E. U. Directive on access to a lawyer which stipulates
that there should be legal counsel provided for at the trial stage. It is open to states
to impose restrictions on would-be litigants, as long as these restrictions pursue a
legitimate aim, are proportionate, and are not so wide-ranging as to destroy the
very essence of the right (Ashingdane84 ). The question remains whether restriction
are acceptable under Article 6 and if so must they necessarily be “lawful”, even
though some cases suggest that they should be (Kohlhofer and Minarik v. the
Czech Republic85 ,§§91-102).8687
84
Ashingdane v United Kingdom, Judgment, Strasbourg, 28 May 1985, Application no. 8225/78
85
Judgment, Strasbourg, 15 October 2009, Applications nos. 32921/03, 28464/04 and 5344/05
86
D. Vitkauska and G. Dikov. Protecting the right to a fair trial under the European Convention
on Human Rights Council of Europe human rights handbook. Council of Europe Handbooks 1st
Printing, 2012
87
Ibid., p. 24.
116
4.2 Legal Aid
4.2.2.1 Historical developments
In the mid-18th century there were no lawyers in courts in the UK. The role of
the defence was played by the judge with respectable members of society taking
on the part of the prosecution. This situation did not last long. From 1752 to
1826 reforms occurred whereby the roles of lawyers was first introduced in criminal
trials.88 In 1836 lawyers were granted the right to address a jury on behalf of the
defendant however this right only extended to those that could afford to instruct
a lawyer.89 The introduction of the Poor Prisoners Defence Act in 1903 allowed
magistrates to order payment of legal help for the defendant.90 The defendant was
only entitled to this help if they were prepared to disclose their defence at an early
stage of the case. As a result of this arrangement it meant that the provision of
legal aid in criminal trials was indeed a rare occurrence. In 1930 the Poor Prisoners
Defence Act introduced the concept of the interests of justice. This awarding of
legal aid was to be determined on a merits based test and magistrates had a wider
discretion when it came to awarding legal aid claims in cases.91 The interests of
justice concept was further elaborated upon in the Widgery Report in 1954 where
it set out that the test which must be met in order to be granted representation.
The test stipulated that the offence would, if proved, result in the loss of liberty,
loss of livelihood or serious damage to the defendant’s reputation. Additionally, the
case would involve a substantial question of law. The test also paved the way for
the modern interpretation for legal aid requirements.92
The Rushcliffe Committee report in 1945 on the state of legal aid in the UK in
conjunction with Legal Aid and Advice Act 1949 lay the foundations for the devel-
opment of the modern day legal aid system that the UK currently has in place. This
system is being reformed again because of financial reasons by the U. K. Ministry
of Justice. The Legal Aid,Sentencing and Punishment of Offenders Act (LASPO)
received royal assent in May 2012. This bill suffered fourteen defeats in the House
of Lords and has been hugely unpopular due to its tightening of legal aid provisions
as well as is removal of legal aid from certain situations altogether. Despite the fact
88
Great Britain: Department for Constitutional Affairs. A Fairer Deal for Legal Aid. Cm (Series)
(Great Britain. Parliament). Stationery Office, 2005. isbn: 9780101659123. url: http://books.
google.hu/books?id=zslCrKAO4noC, pp. 6–7.
89
Ibid., pp. 6–7.
90
Ibid., pp. 6–7.
91
Ibid., pp. 6–7.
92
Ibid., p. 9.
117
4.2 Legal Aid
that the Bill suffered fourteen defeats in the House of Lords, the highest number
for many years the objections were defeated on the basis that the bill was primarily
a financial measure on which the Commons could overrule the Lords’ objections.93
Most of these cuts will affect the civil legal aid budget but there are huge conse-
quences for criminal legal aid as well. The Law Commission met 6 times to discuss
written evidence and to hear oral evidence from invited guests. On the basis of
this evidence it published its final reports in December 2013. The Act intends to
save 350 million pounds from the Ministry of Justice’s annual civil legal aid budget
and in doing so reducing the 2.1 billion pounds per year legal aid bill for England
and Wales.94 The UK has the most expensive legal aid system to run in Europe
with 2 billion pounds being spent annually, and in England and Wales 39 pounds
per head of population as compared to 5 pounds per head in Spain, Germany and
France.95 The arguments of the UK government are that this amount of spending is
not sustainable and that changes urgently need to occur. In May 2010 the coalition
government of the UK set out their plans for the reform of the legal aid system to
ultimately reduce the amount of expenditure. The aims of the reforms are to save
350 million pounds in the financial year of 2014/15. Among others the plans of the
U. K. government is to encourage alternatives to the adversarial system and to have
less defendants engaging in the trial process where and when they do not need to.
The U. K. reforms of legal aid are parallel to that of the E. U.’s The similarity
lies in the fact that there is a predominantly prosecution focused approach to the
reforms. This is evident from the fact that huge emphasis is being placed upon the
alternatives to trial and to solving disputes before they reach trial. Methods and
techniques which are being encouraged are ADR, for civil cases, and plea bargaining
and pleading early in the case so as to avoid clogging up the trial system. So as to
avoid inefficiency and also reducing legal aid costs.
Where defendants plead not guilty, the way in which legal help is pro-
vided can help to ensure that the trial is focused on the key issues.96
The government in making its changes has stated that the Criminal Justice System
93
Labour peer condemns legal aid cuts, by Owen Bowcott, Wednesday 2 May 2012,
http://www.guardian.co.uk/law/2012/may/02/labour-peer-legal-aid-cuts, accessed on the 15th
of April 2013
94
Constitutional Affairs, A Fairer Deal for Legal Aid, p. 9.
95
Reform of Legal Aid in England and Wales: the Government Response, June 2011
http://www.official-documents.gov.uk/document/cm80/8072/8072.pdf accessed on the 30th of
January 2013
96
Constitutional Affairs, A Fairer Deal for Legal Aid, p 21–22.
118
4.2 Legal Aid
(CJS) must be fair. In order to achieve this the objectives have been retuned to
focus predominantly on the prosecution side of things.97
The perspective of the government concerning the problem was not ’insufficient
funding ... but overconsumption of legality’.98 Seeing the indigent in terms of over
consuming constructs a narrative of, “....legally-aided litigants as parasitic figures
(rather than active citizens) whose access to public funds burdened the taxpayer
and placed their opponents at an unfair disadvantage.”99
The pervading problem with legal aid systems is that there is the danger that the
services that are provided end up being of a substandard nature. This may result in
the need to regulate in order to ensure that the advice that is being given does not
negatively impact on the defendant’s defence. One of the objectives of legal aid, is
to try and achieve the redistribution of wealth as a means by which the poor and
the indigent can be active participants in society.
The U. K. does spend significantly more money on legal aid in criminal law than
its European neighbours. Research has been conducted into the different spending
habits of E. U. member states and it is recognised that the differences between
adversarial and inquisitorial systems may be a reason for some of the differences in
spending but it does not account for all of it.
The distinction between adversarial and inquisitorial criminal justice sys-
tems reflects fundamental differences of approach between common and
civil law systems. However, on its own it does not necessarily explain
large differences in spending. Although, adversarial systems spent signif-
icantly longer on jury trials, routine guilty pleas before summary courts
can be disposed of as quickly, if not more quickly, than under the in-
quisitorial system. Nor can attribution of the expenditure differences
to the inquisitorial versus adversarial distinction explain differences be-
tween adversarial jurisdiction. [Clearly] the notion that the adversar-
ial/inquisitorial divide provides the full answer to the question of why
international differences arise in criminal legal aid expenditure cannot be
sustained. ... To try to understand the dynamics of spending we must
97
Constitutional Affairs, A Fairer Deal for Legal Aid, p. 21.
98
H. Sommerland. “Some Reflections on the Relationship between Citizeship, Access to Justice,
and the Reform of Legal Aid”. In: J. Law & Soc. 31, Number 3 (2004), pp. 345–68.
99
Ibid.
119
4.2 Legal Aid
consider explanations beyond simple constitutional requirements.’100

The philosophy behind the legal aid reforms in the UK is that even though legal aid
is important it does encourage people to take their case to court when sometimes it
could be resolved without having to go to trial. The reforms are looking at better
and more efficient alternatives to going to trial.
The Secretary of State Chris Grayling launched a series of consultations on the re-
form in an attempt to encourage public confidence in the legal aid system. “Trans-
forming Legal Aid: Delivering a more credible and efficient system” is the name of
the first consultation which ran from the 9th of April 2013 until the 4th of June
2013 the Government responded to the consultation in the autumn of 2013.
With the passing of LAPSO Lord Bach, a Labour peer announced that he was
standing down from front bench duties. He has been the most outspoken about
the LAPSO calling it a “bad day for the British justice system”.101 He has referred
to LAPSO as, a rotten bill. This demeans our justice system and therefore our
country. He went onto say that “These [cuts] are wicked, wicked in an old-fashioned
sense."102
On 4th of June 2013 the last of the consultations were given to the Ministry of
Justice on their report Transforming Legal Justice. In the lead up to the close of
the consultation several organisations issued their comments on the proposed reforms
as well as several people staged protests. The last of these protests was outside of
the Ministry of Justice on the 10th of June 2013. Several prominent barristers spoke
including Geoffrey Robertson QC, Dinah Rose QC and Michael Fordham QC. The
latter of the three gave a very uproarious speech stating that the Ministry of Justice
was not entitled to call itself as such because the cuts in legal aid would be such
a disservice to the already marginalised and disadvantaged amongst us. He went
on to say that the effective protection that a defense barrister provides would meet
with further challenges.
“Legal aid is the beating heart of the rule of law.”- Michael Fordham
100
Goriely, T., Tata, C. and Paterson, A. (1997) Expenditure on Criminal Legal Aid: Report on a
Comparative Pilot Study of Scotland, England and Wales, and the Netherlands Legal studies
Research Findings No.9 (Scotland: The Scottish Office Central Research Unit) at 4
101
of April 2013
102
of April 2013
120
4.3 Case studies: Hungary and Serbia
He emphasised the fact that the State will have the lawyers that they choose every
time that they bring a case but you will not get to choose.
This position is a clear infringement of Article 6 (3) (c). As the debate rumbles on
in the U. K. it is yet to be seen what the repercussions, if any, will be at the ECtHR.
What is clear is that the U. K. is moving towards a system of efficiency making use
of early guilty pleas and plea bargains. It is in these efficiency driven systems where
the role of defence should be paramount in order to help the defendant navigate
their rights. Unfortunately access to justice is being curtailed in the very areas it
is needed the most because of reforms in the U. K. and Supreme Court decisions in
the U. S. to limit access to effective defence.
Both Serbia and Hungary make interesting case studies with regards to their legal
provisions concerning legal aid. Like the U. K. , Serbia has recently instigated
reforms to its legal aid practices as it seeks accession to the E. U. Hungary is notable
for its lack of transparency in the appointment procedure of its lawyers to legal aid
cases.
4.3.1 Serbia
The importance of having a fair and efficient legal system becomes even more im-
portant for those countries which are seeking accession to the E. U. Serbia is in the
process of adopting new legal aid systems so as to comply with the CoE’s require-
ment that legal aid be seen as essential component of the rule of law. There are
no fixed , harmonised standards or benchmarks upon which Serbia can draw from
when creating their new legal aid laws. Despite this fact, within a EU context, there
are examples of standards set down by the case law of the ECtHR which can help
to inform their guidelines on the issue of legal aid.
Serbia has serious shortcomings with regards to its legal aid legislation in terms
of how it has been formulated. Serbia has sought to limit the number of people
who would be able to access legal aid by making extensive criteria for eligibility.
Eligibility is limited by making a distinction between primary and secondary legal
aid. Primary legal aid is given without the need for an eligibility check whereas
121
secondary legal aid requires the applicant needs to meet certain criteria for being
in the right economic eligibility for legal aid.103 Access to legal aid and any form
of legal assistance is often only sought once the case is under way, this bring cases
into conflict with Article 5. This situation exacerbates the problem of unnecessary
litigation and delays in the court procedures.104 The Serbian government adopted
the Strategy on the Development of a Free Legal Aid System for the 2011-2013
period. A council was established in 2012 to help with the implementation of the
strategy but it has yet to meet. Unfortunately the government did not include legal
aid in its state budget for 2013. The defence have certain rights which are protected
by both the criminal procedure code and the constitution. The defence rights which
are of most interest for us are the right of the defendant to be afforded sufficient
time to mount their case. This right means that they should be afforded 15 days if
the crime that they are accused of will mean that they will serve a minimum of 10
years imprisonment.105 The principle of equality of arms has also taken some knocks
in the Serbian criminal system in that the prosecution have had new prosecutorial
investigations introduced. In addition to the imbalance in the preparatory powers of
both sides the law does not specify that defendants should be represented by defence
counsel and the law on legal aid has yet to come into force.106 The constitution does
guarantee the right to defence in article 33. The criminal procedure code also confers
on the defendant the right to defend themselves or to employ a defence lawyer of
his own choosing. This provision only has meaning if one can afford to buy that
kind of legal defence. The court can also appoint a defence lawyer ex officio until
the judgment becomes legally effective.107 Article 74 of the criminal procedure code
specifies those instances in which the defendant must be assured a defence lawyer.
There are certain brackets for when a lawyer must be provided and this depends upon
the likely amount of imprisonment that the defendant will receive if the defendant
103
A. Uzelac and B. Preloznjak. “The Development of Legal Aid Systems in the Western Balkans. A
Study of Controversial Reforms in Croatia and Serbia”. In: Kritisk Juss 38.3-4 (2012), pp. 261–
387.
104
Ibid.
105
Right to a Fair Trial, Yearbook of the Balkan Human Rights Network (Yearbook of the Balkan
Human Rights Network), issue: 01/2012, pages: 159-176, om www.ceeol.com (accessed on the
6th of August 2013
106
6th of August 2013
107
6th of August 2013
122
is convicted of the offence.

“The CPC lays down that defendant who cannot afford a defence counsel
shall be appointed one at their request if they are accused of a crime
warranting over three year’s imprisonment or in the interest of fairness
(Art. 77).”108
The Serbian legal aid provisions fall far short of the recommended international
norms in that the focus of legal aid provisions are more upon the formal proceed-
ings than upon the the actual legal advice given as well as upon information and
preventive measures.109
The high level of flexibility in the Serbian proposed legal aid legislation when it comes
to assessing the financial eligibility of the individual is in line with the ECtHR but it
also does serve to create a situation whereby the results may indeed be unpredictable
because there is no uniform application of the law.
Uzelac and Preloznjak’s concluded that the Serbian system of legal aid does not
conform with the international legal aid standards in that the provisions are not
adequately accessible, do not provide citizens with effective means for accessing
justice and that the process of accessing legal aid is unnecessarily complex. The
major problem with regards to Serbia is that they have been granted funds for their
legal aid systems but most of this funding has been paid to administrative purposes
rather than into the legal aid budgets itself. What funding is available may in all
reality take years for it to filter down to the lawyers who have provided the work pro
bono. It is asserted that the way in which the funds have been allocated for legal aid
further serve to create a system whereby monopolies of both access to the law and
knowledge are formed. In doing so the poor, and disenfranchised are held at bay
and their rights are trampled upon. This also discourages those organisations that
would be willing to provide legal aid services from doing so because the process of
registering is both complicated and inaccessible. Additionally a distinction is drawn
between primary and secondary legal aid with primary receiving the least amount
of support.
The Serbian Constitution of 2006 took into consideration the constitutions of other
108
6th of August 2013)
109
Uzelac and Preloznjak, “The Development of Legal Aid Systems in the Western Balkans. A
Study of Controversial Reforms in Croatia and Serbia”.
123
member states when formulating its own inclusion of legal aid as a constitutional
right. Article 67 ensures the right to legal aid for every individual. This provision
means that the right to legal assistance is guaranteed according to the law.110 The
State is under an obligation to provide legal aid. Despite this move forwards in
terms of legal aid protection there still remain significant barriers to the realisation
of this service in Serbia. 111
The Republic of Serbia is obliged, by the C. o. E., to ensure that there is easy and
effective access to justice. The C. o. E. has enacted several documents which must
be taken into consideration when formulating provisions of legal. 112 Despite the
Republic of Serbia having constitutional provisions as well as laws concerning legal
aid there still remain considerable barriers to accessing justice.113 The predominant
issue is the level of poverty. In 2002, 10.6% of the population were living below the
poverty line in addition to this 20% of the population have insufficient means for
living.114 The major cause of poverty is unemployment which is only expected to be
exacerbated in the years to come.115 Also, the Republic of Serbia has large groups
110
Pursuant to article 45, para. 1 of the Law on the Government (Official Gazette of the Republic of
Serbia, No. 55/05, 71/05-correction, 101/07 and 65/08), the Government adopts STRATEGY
FOR FREE LEGAL AID SYSTEM DEVELOPMENT IN THE REPUBLIC OF SERBIA, page
1
111
1
112
Resolution (76) 5 on legal aid in civil, commercial and administrative matters, from February 18,
1976, Resolution (78) 8 on legal aid and advice, from March 2, 1978, Recommendation No. R
(81) 7 of the Committee of Ministers to member States on measures facilitating access to justice
(adopted on May 14, 1981), Recommendation No. R (93) 1 of the Committee of ministers to
member states on effective access to the law and to justice for the very poor (adopted on January
8, 1993). (http://www.legislationline.org), Charter of fundamental rights of the European
Union, (2000/C; 364/01; Nice, 7/12/2000), Council Directive 2000/43/EC of 29 June 2000
implementing the principle of equal treatment between persons irrespective of racial or ethnic
origin, Official Journal L 180, 19/07/2000 P. 0022 - 0026, Council Directive 2002/8/EC of 27
January 2003 to improve access to justice in cross-border disputes by establishing minimum
common rules relating to legal aid for such disputes. Official Journal L 26/41, 31/01/2003.
113
7
114
7
115
124
of marginalised as well as vulnerable groups who suffer increased risks of exclusion

from access to justice.
The need for legal aid that is both real and accessible is of increasing importance
especially where individuals who are facing possible imprisonment of 10 years or
more do not receive legal counsel. Statistics show that 54% of defendants have
not had legal counsel by their side when giving a statement and 46% of defendants
had not had legal representation during the investigative stages, and only 11% had
received free legal aid because of their poverty.116
There are no safeguards in place to ensure quality control of the representation being
provided. Access to justice and legal aid are seen as being dual tools with which to
restore citizen’s trust in the legal system, providing them with empowerment and
a way to identify with the legal and political process. Many people are unaware of
their rights and how they may exercise those rights and in which ways they ought
to be protected. The Serbian Strategy for Free Legal Aid System Development
(2006) identifies that despite the constitutional right there is a great need for an
institutional framework which would regulate the implementation of a legal aid
system ensuring that the quality of counsel being provided is secured ethically at
the appropriate standard for all. There are no defined steps as of yet with regards to
securing access to justice for all through the mechanism of legal aid in the Republic
of Serbia.117
The Serbian legal system has what appears to be the requisite tools for establishing
an effective and working legal aid system but what is lacking is the political will
and foresight to see the programme through to fruition. This is why it is imperative
that decisions such as Salduz v. Turkey be given there full weight and force.
FOR FREE LEGAL AID SYSTEM DEVELOPMENT IN THE REPUBLIC OF SERBIA,

pages 7-8
116
FOR FREE LEGAL AID SYSTEM DEVELOPMENT IN THE REPUBLIC OF SERBIA,page
9
117
FOR FREE LEGAL AID SYSTEM DEVELOPMENT IN THE REPUBLIC OF SERBIA,page
17
125
4.3.2 Hungary
In 2012 the Hungarian Helsinki Committee (HHC) carried out a survey of various
police stations, public prosecutors as well as defence lawyers so as to ascertain how
the legal aid system was functioning in Hungary. The report uncovered, that the le-
gal aid system in Hungary is significantly lacking.118 Their findings are corroborated
by other academic research conducted in Hungary.119 ,120 The report reiterated the
same problems which nearly all countries have cited as being a major obstacle, that
there are more cases then there are legal aid lawyers who are able to work on their
cases. This situation encourages the early resolution of cases before they even reach
the trial stage through plea bargaining mechanisms. There were endemic problems
of quality and of lawyers under performing. It was cited that in several cases that
the legal aid lawyer sometimes did not even say a word throughout the entire trial
or were not even present at the first police interview.121
The HHC stated that financial difficulties contributed to the quality of the legal
aid services. Most defence lawyers are paid very little. This lack of adequate re-
muneration for work was not the only financial difficulty which contributed to a
below par legal defence. A significant hindrance for basic defence rights is the lack
of adequate funding available for an infrastructure to support a system of legal.
Structural problems were cited as being the biggest barriers to detainees being able
to make a phone call to their lawyer as there was not enough money available. The
HHC identified the need for greater coherency and they suggested that this could be
achieved through an independent monitoring body which would oversee the working
of the system.
The question of who will be awarded legal aid counsel is answered by the law in
Hungary.122 According to, “Az ügyvédekrőé szóló 1998. évi XI. törvény (Ütv.) 34.
§ (1)” it states that the selection of the legal aid counsel is dependant upon the law
firm maintaining a list of those lawyers who are willing or have (already) undertaken
legal aid work. In the criminal procedure code the law of 1998 of the year XIX states
118
“A kirdendelt Védő intéményének Szociológiai Elemezése” Nagy Zsolt Tanulmány a kirendelt
védő jogintézményéről pp.1-15, 2000/4. szám tartalomjegyzéke.
119
K. Bárd. “Access to Legal Aid for Indigent Criminal Defendants in Central and Eastern Europe”.
In: Parker Sch. J. E. Eur. L. 5.1-2 (1998), pp. 1–224.
120
Cs. Herke. Megállapodások A Bűntetőperben. Szerző, 2008.
121
Cs. Fenyvesi. “Constitutional principles in the light of the defensive position”. In: Jogelmeleti
Szemle 1 (2002).
122
Ibid.
126
that the organisation that regulates as well as controls the appointment of legal aid
counsel to a particular case is the judge, the prosecutor or the investigating authority.
This immediately brings to the fore the question of independence and impartiality.
What is of particular concern is that it is most often that the prosecutor will select
the legal aid defence lawyer. The allocation of legal aid lawyers to a particular case
is not necessarily based upon the age of the lawyer but to some extent the seniority
of the lawyer. As legally aided work is not very well paid the least senior lawyers are
often allocated the work. This is most counter intuitive, as the least senior lawyers
do not have as much experience. This results in the legally aided receiving, in some
cases, below par representation. As they say, you get what you pay for, in the case
of the legally aided, nothing.
There have been attempts to improve the legal aid system. It is recognised that
the system as it currently stands is indeed lacking. Between 2004-2007 the HHC
established the Criminal law assistance programme whose objective was to provide
an alternative system by which legal aid lawyers can be provided to defendants.
The system employed would be an automated computer programme which would
at random select lawyers whose names had be uploaded to the system. A trial run
was introduced to see how and if the system (called RobotZsaruba) would work. A
positive outcome of the pilot programme was that the number of legal aid lawyers
increased. It was also agreed upon by some of the Public Prosecutors that it was
not the most fortunate of situations if they allocated the legal aid lawyer for the de-
fence. The Ministry of Public Administration and Justice (Közigazgatási és Igazágü-
gyi Minisztérium Igazságügyi Szolgálata (KIMSZ)), suggested an independent body
should be responsible for the allocation of legal aid. KIMSZ would allocate finances
ahead of time be that 3, 6 or 12 months in advance and they would set the budget for
the lawyers. In June 2011 it was announced that it could be expected that KIMSZ
would be responsible for playing a role in the allocation of legal aid. The question
still remains as to on what basis this allocation of services would be conducted so
as to ensure impartiality.
In order for one to qualify for legal aid support they must be indigent. Their status
of indigence is determined by their financial situation. The common household per
capita income is sometimes also considered (as like in the case of Serbia). This
process is severely flawed because it is dependant upon the people living together
agreeing to support one another financially. Most indigent individuals do live to-
gether because of their financial situation and therefore are not always necessarily
127
in a position to be helping one another.

The first real reforms to the criminal legal aid provisions were in 2003.123 The new
provisions resolved a matter of contention concerning the fee of the defence counsel
as up until this point this was only advanced but not borne by the State.124 The
new provisions now provide for the exemption of legal aid costs for defendants who
are indigent. These reforms only went part of the way in reforming the system of
allocating the funds. The reforms mostly concerned themselves with the civil law
aspects of things and providing indigent applicants with information about their
rights. The system did not create a way in which to register lawyers so that they
could be easily identified as providing legal aid. This is a issue which the HHC has
been working towards encouraging the Ministry of Justice to reform.
As in the case of Serbia , Hungary’s legal aid rules also went under extensive reforms
before their accession to the E. U. The reforms occurred in 2004 and 2008 at around
the time Hungary was seeking acquis in line with the Council Directive 2002/8/EC
of 27 January 2003 to improve access to justice in cross-border disputes. Most of
the reforms focused on the civil law system. It was not really until the new Criminal
Procedural Code reforms of 2012 which came into force in July 2013 that real impact
to both the legal aid and plea bargaining mechanisms have been felt.
The European Commission in its decision of 26 August 2005 provided a template
form of the transmission of legal aid applications under Council Directive 2003/8/EC
(2995/630/EC). The Council Directive 2003/8/EC of 27 January 2003 takes into
consideration the steps “to improve access to justice in cross-border disputes by
establishing minimum common rules relating to legal aid for such disputes.” The
standard template form is an attempt to create a system whereby the form of ap-
plications for legal aid are standardised.
The reforms of 2004 and 2008 affected the requirements for eligibility for legal aid.
The determinants were a means test for indigent defendants. Those who are auto-
matically considered to be indigent will have to evidence this through the regular
receipt of social and healthcare assistance, homeless, refugees, and those who are
carers of children who receive some kind of child support.125 If an individual’s sit-
uation is only slightly better than that of an indigent applicant then they will be
offered support on the basis of deferred payments. The state of indigence is deter-
123
Act XIX of 1998 on the Code of Criminal Procedure came into force.
124
M. Pardavi. The Legal Profession in Hungary. ODIHR, 2008, p. 15.
125
Ibid., p. 12.
128
4.4 Summary and Conclusions
mined by the statistics provided by The Central Office of Statistics which sets out
what the poverty line is for every year.
The right to choose is not a possibility and as we have seen from the above there
are real problems with the impartiality of the appointment of the legal counsel as it
is the prosecution, police or the court who appoint the legal counsel. A pervading
problem throughout all of the systems is that of quality control. Quality control
measures are completely lacking in the Hungarian system when it comes to criminal
legal aid.
The combined issues of low eligibility and low income incentives for lawyers all serve
to create a system whereby the lowest common denominator is consistently applied.
The quality of this legal advice must be such that it enables the defendant to mount
an effective defence against those charges which are being brought against them.
The pervading problem with these provisions is that there is a danger that they will
never be anything more than conceptually and formalistic ideas which do not trans-
late into real rights of access to justice for the indigent defendants. The Hungarian
government ought to ensure that the rights that they implement are in the spirit
of ensuring access to real human rights. If we consider access to the courtroom a
human right, “then so must access to legal services be.”126
The right to a legal defence is invariably connected with the right to access justice.
This is evidenced by the ECtHR ruling in Salduz v Turkey127 . The ECtHR has
established that the presence of a lawyer is vital in ensuring access to justice. Despite
this there is still a lack of much needed clarity in the application of the requirements
for what constitutes an effective defence across Europe. As we wait for the ECtHR
to hand down their decision in the case of A. T. v Luxembourg128 we can only hope
that the ECtHR will send a definite message of what constitutes justice. Particularly
concerning is the application of the narrow or strict rule. According to the narrow
application of the Salduz principle it will only constitute an infringement of the
126
C. Harlow. “The EU and Human Rights”. In: ed. by P. Alston, M. Bustelo and J. Heenan. Oxford
University Press, 1999. Chap. Access to Justice as a human right: The European Convention
and European Union, pp. 187–213, p. 189.
127
128
Judgment, Strasbourg, 20 April 2013, Application No. 30460/13
129
effective defence requirement if the defendant gives a confession in the absence of

their lawyer. The strict application states that there will be an infringement if the
defendant makes statements which are of an incriminating nature in the absence of
their lawyer. Both flagrantly disregard the procedural safeguards established by the
ECtHR, however, there is yet to be any clarity over their application.
There are several obstacles both social and legal which work against the indigent
defendant accessing justice.
There is not much distinction between the more developed and historically en-
trenched legal systems of democratic countries and those which have forged new
countries out of a history of communism. One would have thought that it would
that the legacy of the Magna Carta or even the U. S. Constitution which are cham-
pions for the importance of access to justice would provide fertile ground from which
the right to counsel could grow. It would appear from the case law that this is not
always the case. Worryingly the newly formed States then call on the example of
these western countries practices as reasons and justifications for adopting practices
which are below par in terms of defence rights. The pressure to conform to the
standards of the E. U. is evident and understandable. What is not, evident and
understandable, is that the E. U. has a high standard for those joining but those
that are already in seem to be flaunting this position.
The U. K. ’s reform of its legal aid has caused great controversy within its borders
and has also attracted international attention. The U. K. heralds its legal system
as being amongst one of the most developed in the world. The measures that are
proposed by the Ministry of Justice are greatly misguided and are headed for a
collision course with fundamental rights.
Just as the E. U. is coming to the end of its Roadmap under the auspices of the
Stockholm Programme it calls into question how seriously the U. K. takes its obliga-
tions. The E. U. Directive on the right of access to a lawyer in criminal proceedings
and the right to communicate upon arrest, will be greatly hindered by the introduc-
tion of LAPSO in the U. K. The right to a fair trial, as has been recently interpreted
by the court, hinges on the right to access to a lawyer.
The lawyer acts as a conduit through which access to justice can be achieved. Once
the lawyer has been secured for the defendant their role just begins. In tangent with
need for legal aid there also come other countervailing methods to undermine access
to the trial.
130
As a result of the growing number of cases and the lack of resources to hear them
adequately alternative methods to trials have been employed so as to ease this load.
This has resulted in a drive for a more efficient and effective justice. One such
method that is commonly used in both the U. S. and the U. K. is plea bargaining.
The practice of plea bargaining has also been modified and applied on the continent.
The law then becomes a barrier rather than the enabler of justice. It is this practice
of circumventing the trial that will now be addressed in the chapters below .
“Before the law stands a doorkeeper” (Kafka 1992:285 The Trial)
This statement is true for all defendants without the ability to access an effective
defence. Irrespective of the fact that it is favourable to resolve things outside of
court as quickly and as amicably as possible there still remains the problem that
defendants are being encouraged to opt for alternative methods to the trial.
There are several versions of what the message of Kafka’s The Trial is. One inter-
pretation is that when the law starts to function as a machine, then justice gives way
to necessity. Necessity is seen as the inevitable detention of the defendant. It is this
fear of detention which quashes challenges to the way in which the justice system is
set up. Giving way to necessity is the most troubling phenomenon of the criminal
procedure which has been left hanging in the air in the context of plea bargaining.
The defendant realising the limits of law to ensure their justice looks for ways to
limit the damage by opting to use mechanisms which limit their right to a fair trial.
131
5 Plea Bargaining: the pursuit of
justice?
“In all cases of penal procedure, the declared supposition is, that the
party accused is innocent; and for this supposition, mighty is the laud
bestowed upon one another by judges and law-writers. This supposition
is at once contrary to fact, and belied by their own practice. . . . The
defendant is not in fact treated as if he were innocent, and it would
be absurd to deal by him as if he were. The state he is in is a dubi-
ous one, betwixt non-delinquency and delinquency: supposing him non-
delinquent, the[n] immediately should that procedure against him drop;
everything that follows is oppression and injustice” Jeremy Bentham1
The practice of plea bargaining challenges the very premise of the trial; which is to
find the truth and see justice done.
What does the practice of plea bargaining do for the quest,of the pursuit of truth
and justice? At one level plea bargaining erodes and side steps the pursuit of truth
and justice. Central to the practice of the plea bargain is the confession or admission
of guilt. It would appear that we have overlooked to some extent this fundamental
point. Everything up until now, in terms of reforms, have been window dressing.
In order for a trial to be fair, it is important that the confession be given freely
and voluntarily before it can be admitted as evidence. One determining factor
of whether the confession was given freely and voluntarily is whether counsel was
present. This principle is a fundamental component of article 6 (of the ECHR)
principle of equality of arms. It is this question of a confession and a plea of guilty
that must be given freely which is a crucial aspect when considering the practice
of plea bargaining. Plea bargaining has developed as an informal, and to some
1
J. Bentham. In: Principles of Judicial Procedure 169 (1829)
132
Plea Bargaining: the pursuit of justice?
extent largely unregulated practice until recently which means that jurisprudential
questions are still being formulated regarding its validity.
Plea bargaining was intended to target organised and serious crime but it, instead
formalised the previous corruption. It formalised the corruption because plea bar-
gaining gives organised crime a veneer of respectability as a serious or career criminal
can arrange to buy a plea rather than having to orchestrate a more complex dis-
missal. It this very concept that turns the law into a commodity rather than a given
that all have access to justice irrespective of their position on the hierarchical ladder
of society. This shift challenges the rule of law and due process basic intentions.
The E. U. has been slow respond to this endemic problem and has finally set about
implementing a roadmap for justice. This roadmap, which runs until 2014 includes
6 Commission directives which all aim at improving the European harmonisation
of defence rights. The directives were in part brought about by the fact that there
were increasing number of cases of foreign nationals within the E. U. who were
being prosecuted but not necessarily being guaranteed their basic rights. counsel
have been incorporated into the E. U. directives2 which requires subscription by
member states. These two directives are part of a package proposed by the Eu-
ropean Commission to improve the procedural rights of defendants. In November
2013 the European Commission proposed a further three directives; the presump-
tion of innocence; special safeguards for children suspected and accused in criminal
proceedings and access to legal aid. They are yet to be implemented. There are
no directives which specifically address the practice of plea bargaining. Despite this
fact the proposed directive on the presumption of innocence3 could have a significant
impact upon the way in which member states use the practice of plea bargaining.
There are no adequate mechanisms in place to protect defendants from falling fowl
of the gaps between access to justice , like legal aid and the prosecuting models of
plea bargaining.
2
DIRECTIVE OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on provisional
legal aid for suspects or accused persons deprived of liberty and legal aid in European arrest
warrant proceedings and DIRECTIVE 2013/48/EU OF THE EUROPEAN PARLIAMENT
AND OF THE COUNCIL of 22 October 2013 on the right of access to a lawyer in criminal
proceedings and in European arrest warrant proceedings, and on the right to have a third party
informed upon deprivation of liberty and to communicate with third persons and with consular
authorities while deprived of liberty
3
COM(2013) 821/2 Proposal for a DIRECTIVE OF THE EUROPEAN PARLIAMENT AND
OF THE COUNCIL on the strengthening of certain aspects of the presumption of innocence
and of the right to be present at trial in criminal proceedings
133
These problems occur because there are no viable alternatives. There is a need to
ensure, as far as it is possible that the truth be exposed for the sake of the innocent
defendant, the victim and society.
5.0.0.1 The Truth and nothing but the truth?
The importance of truth and what is perceived as the truth varies depending upon
the trial jurisdiction one is in. The inquisitorial process is interested in obtaining
the absolute truth whereas the adversarial methodology is concerned with probable
truth. This paradigm creates numerous problems as there is an inherent gap in the
jurisprudential thought between the two systems when considering the practice of
plea bargaining and the pursuit of the truth. Plea bargaining circumvents both the
traditional inquisitorial and adversarial form of the quest for the truth at the trial.
This practice challenges the belief that fairness is equated with truth because that
is the objective of the trial. The search for the truth varies upon the context. Truth
is important for all adjudicative proceedings but what is of incredible importance is
ensuring that the fact finding process is accurate but this is far from constant across
legal proceedings.4 ,
Research into plea bargaining has focused predominantly upon the travesty of con-
victing and persuading the innocent to plead guilty. This practice is prevalent as
the importance of the truth is losing its centrality to the trial. Our societal views
of what constructs truth have changed. As such we have a legal system which is
outdated as compared to our now modernistic views of what constitutes truth. If
this is the case then should the justice system adapt its pretence of pursuing the
truth as it clearly does not do this when employing alternatives to justice such as
plea bargaining.
Alternatives to justice is an expression used to draw a distinction between theories of
justice which have a deeply embedded concept of finding the truth. When engaging
in practices, however, which do not pursue the truth then they are juxtaposed as
being something which is an alternative to justice, a lesser, watered down, “justice
light” version.
The truth is no longer central to our workings and conceptualisations of a fair and
just trial system, then what is? It could be suggested then that the phrase, “the
4
M. R. Damaska. “Truth in Adjudication”. In: Hasting L. J. 49 (Jan. 1998), pp. 289–308.
134
whole truth and nothing but the truth so help me God”, is rather an unachiev-
able state. The whole truth is a subjective state where one cannot really reach an
objective stance. As such the pursuit of justice is a fallacy behind which legal prac-
titioners and scholars have hidden. In reality they have been practicing a game of
“almost truth” or in the worst cases the denial of the pursuit of the truth and jus-
tice altogether. This is being exposed via the plea bargaining model. This presents
us with the problem of where does this leave respect of the right to a fair trial?
Most research conducted into plea bargaining is concerned with its practice and the
imbalance of power between the prosecution and defence. One study conducted by
Deirdre Bowen looked at ways in which the practice of plea bargaining could be
regulated by an independent body.56 In the state of Seattle Early Plea Unit’s (EPU)
were established so as to secure an “independent” prosecutor who has no vested
interest in the case and is also not acting for the state. In this way it is argued
that there is a fairer and more balanced plea bargaining relationship between the
two parties7 This is a novel approach to making the plea bargaining process fairer.
Bowen observes that the same tactics are used to encourage the defendant to plea
guilty. For example, the fact that if they plea guilty early on in the case they will
have a better chance at getting a lower sentence. In this way it was observed that
sometimes the defence lawyer would advise the defendant to plea guilty as they were
able to manipulate the system to ensure the best possible outcome for their client.
One of the arguments in favour of this type of system was that it helped to balance
the power more evenly between the parties. The system is seen as being neutral
as the prosecutor does not have a vested interest in the case but this is not a true
representation. It is very difficult to ensure that the interests of the defendant are
properly protected. The EPU system only really works well with the least serious
cases. In most cases there is pressure to go to trial but also a fear that if they do so
their client, the defendant will not receive as good a deal if they had accepted the
plea. In this way the activities of the EPU as well as the plea bargain are not so
much about justice being done but rather the quest for efficiency.8
5
D. Bowen. “Calling your Bluff: How Prosecutors and Defense Attorneys Adapt Pleas Bargaining
Strategies to Increased Formalization”. In: J. Q. 26.1 (2009), pp. 2–29.
6
The regulation of plea bargaining by an independent body is often referred to as being a good
mechanism by which to ensure a curtailment of the bargaining position of the prosecution.
Another advantage of an independent body is that it can perform a monitoring role of the plea
bargaining process
7
Bowen, “Calling your Bluff: How Prosecutors and Defense Attorneys Adapt Pleas Bargaining
Strategies to Increased Formalization”.
8
Ibid.
135
The U. S. practice of prosecutorial discretion means that they hold all of the cards.
Once they have determined based upon the weight of the evidence to offer a plea it
cannot be modified at a later date. It is a take it or leave it deal. The Prosecutor
is also free to withdraw the plea bargain at any point in the proceeding. The judge
can only review the charge files but cannot change the charges if they feel they do
not adequately reflect the facts of the case.9 In cases such as the Dallas Morning
News where in a series of homicide cases the prosecutors offered lesser charges of
deferred adjudication and probation if they agreed to plead guilty. The prosecutors
believed that all of the defendants were guilty but were concerned that the cases
against them were weak and would not succeed at trial. This tactic is not in the
pursuit of justice as it circumvents the interests of the victim and society. One of
the most controversial issues with the use of prosecutorial discretion in the plea
bargain is the weak evidence of guilt10 There are three main problems which can be
identified in connection with the prosecutorial discretion that firstly the bargain is
too generous which results in encouraging the defendant to plead guilty, secondly,
if it is a generous offer it may let off too easily a guilty defendant resulting in a
disservice to both the victim and the public, thirdly, if the parties debate the facts
this could result in a distortion about the truth of the case.11
In the case of Germany, the Federal Supreme Court expressly forbids the use of
bargains concerning the verdict which include fact and charge bargains.1213 One
reason that there is such a distinction between the U. S. and German practice of
plea bargaining is because the Germans adhere to what is called the legality principle
also known as the mandatory prosecution principle. Interwoven with the principle
of legality, is the fact that the German prosecutors are devoted and also have a duty
to uncover the substantive truth and in conjunction with this the German courts
also have a duty to intervene where and when they believe that the precise truth of
the case is not being accurately represented. All of these mechanisms and factors
taken together work towards the pursuit of justice in Germany unlike in the U. S.
Another distinctive factor between the German and American systems is the ac-
ceptance of the confession which then supports the guilty verdict. The German
9
J. I. Turner. “Prosecutors and Bargaining in Weak Cases: A Comparative View”. In: SMU
Dedman School of Law Legal Studies Research Paper No. 87. (2011), pp. 1–13.
10
Ibid.
11
Ibid.
12
Ibid.
13
Bundesgerichtshof [BGH] [Federal Court of Justice], March 3, 2005, BGH GSt 1/04
136
Federal Supreme Court has stated though that the acceptance of a confession can-
not be accepted without it being, “at least so concrete that the court can determine
whether the confession reflects the facts presented in the case file to such an extent
that further examination of the matter is not necessary.”14 Despite the offering of
the plea bargain in the German system the judge still has the ability to review
the sentence and if they deem that it is not proportionate and does not reflect the
blameworthiness of the defendant15 then the judge can change the sentence. Neither
of the approaches of the American and German system is perfect in pursuing justice.
Despite this, in the German system there is a process whereby the plea bargain is
reviewable and subject to a result after a transparent public process.16
The tension between the pursuit of justice and truth is felt acutely when observing
the role of the defense counsel in plea bargaining.
According to the works of Blumberg17 , Skolnick18 and Cole19 , the defence counsel
“is not so much an unwittingly co-opted agent used by the self-serving
court bureaucracy, as he is one of the key figures in an elaborate system in
which everyone, including himself, has certain commodities to exchange
in the pursuit of his own interests.”20
Cole asserts that displacing conflict with cooperation is the new language of the plea
agreement as well as the plea bargain. This produces a system whereby administra-
tive and personal goals are maximised rather than the “formal organisational goals
of due process.”21
If the trial is circumvented then the truth is also not exposed. Plea bargaining
then becomes about one person’s interpretation of the evidence and the truth by
the prosecutor. This places the defendant in a perilous position as they are then
unable to weigh up the evidence to determine what case they would like to build.
A fundamental requirement of the principle of equality of arms.
The overall objective of the prosecutor is to match factual proposition with the
14
BGH, Decision of March 3, 2005, BGH GSt 1/04
15
Turner, “Prosecutors and Bargaining in Weak Cases: A Comparative View”.
16
Ibid.
17
A. S. Blumberg. “The Practice of Law as Confidence Game: Organizational Co-optation of a
Profession”. In: Law & Soc’y Rev. 15:1 (1967), p. 20.
18
Skolnick, Justice Without Trial: Law Enforcement in Democratic Society.
19
G. F. Cole. The American System Of Criminal Justice. Duxbury Press, 1979.
20
Feeley, “Two Models of the Criminal Justice System: An Organizational Perspective”, p. 419.
21
Ibid., p. 416.
137
overall story which then has to be matched with the reality of the way the world
really is. It would seem to be logical then when one is trying to ascertain the truth
that it ought to occur within the confines of a,
“properly structured discussion among people with different viewpoints.
The more you let them argue, freely ask questions, and justify their
positions, the more you can be confident in the accuracy of outcomes -
not only in deliberating about values and rules, but also in determining
the truth of factual claims.”22
The problem is that this version of searching for the truth is not always what really
happens rather truth and successful justification of knowledge are mixed up which
results in circumstances like the plea bargain. In these circumstances truth is deemed
as being anything which both of the parties have agreed to beforehand, very similar
to the plea, here, “truth tends to be equated with whatever is agreed upon following
the inquiry free of distorting constraints, or with whatever has been successfully
defended against all comers.”23 . According to this theory fact finding rests upon a
realists view of the truth. This theory underpins the theoretical premise of the plea
bargain as,
“According to this theory, what is “really” true need not square with
what has been decided to be true; factual findings need not match reality,
even though inquiries leading to them were optimally designed.”24
In this approach the question is also raised as to how to make the process of fact
finding and ascertaining the truth more expedient. In essence how can the guilty
criminal be given an incentive to plead guilty? Damaska here is concerned with the
procedural steps that can be taken to ensure that in the collecting of evidence funda-
mental rights are not infringed. The danger with this approach of giving incentives
for guilty defendants to plead guilty is the risk of evidence being contaminated and
fabricated. A final danger with this approach of the anti-realist, as identified by
Damaska, is that, “by blurring the lines between truth and successful justification,
they obfuscate the distinction between procedural doctrines that were created to
promote fact-finding accuracy and those rooted in considerations of fairness.”25
This is apparent when considering that a trial in and of itself cannot guarantee that
22
Damaska, “Truth in Adjudication”, p. 294.
23
Ibid., p. 295.
24
Ibid., p. 295.
25
Ibid., p. 296.
138
the truth will successfully come out in litigation but that is why it is called in the
“pursuit of the truth/justice”. A defendant normally finds themselves embroiled in
a plea bargain situation where based upon the proof which is available to them at
that juncture in the proceedings. Proof, is a complicated matter and it is entangled
with how we perceive truth to be defined. One potential problem with the way in
which conceptualise truth is also in part a linguistic one. As proposed in the case
of Williams v. Florida26 it is possible that the word “truth” is not entirely the best
use of the word as it conjures up a specific view which is that there should be a
particular procedural outcome. In this way the discovery of the truth is viewed as
resulting in a just decision. As such adjudication becomes seen as a process whereby
participation is integral, a principal which is upheld by the ECtHR, it is through
participation where one can observe if there are tensions between the pursuit of
truth and the considerations of truth.27
“ (...) participation now also appears as the most conspicuous ingredient
of procedural fairness. And when fairness is so conceived, it no longer
appears as a constraint on decisional rectitude, but as a precondition for
it. The greater the “voice” of the parties in proceedings, the more the
resulting decision seems correct.”28
It would appear to be apparent from the above that the active participation and
the ascertaining of the “truth” are confined to the trial. As such, it is no wonder
that the innocent defendant is particularly vulnerable to being convicted as the plea
bargain is not interested in ascertaining the truth or preserving the presumption of
innocence but rather replacing it with the presumption of guilt.
Within this debate comes the issue of adversarial versus the inquisitorial divide
over which procedural practice is better for producing a fair result. The differences
between the two systems appears to be minimal but after research conducted into
which system a defendant would prefer the result indicated that an adversarial
one was chosen.2930 The research indicated that the most appealing part, and the
reason for selecting the adversarial process, was that defendants felt that they as
participants would have more control over the process and the way in which the trial
26
399 U. S. 78, 82 (1970)
27
Damaska, “Truth in Adjudication”, p. 303.
28
Ibid.
29
P. J. van Koppen, ed. Adversarial versus Inquistorial Justice. Springer Science+Business Media
New York, 2003.
30
139
was conducted as well as presented.31 The choice of the defendants would appear
to be backed up by the ECtHR. Even though the ECtHR has tried to give neutral
interpretations of the application of Article 6. It is unavoidable to notice that Article
6 quite clearly includes a due process clause. Despite the ECtHR’s attempt at a
neutral stance its case law has shown an indication of interpreting Article 6 in a
fairly adversarial manner.
One of the defining features of the adversarial process is that the parties are essen-
tially equal. This equality can only become a reality if both parties play in a fair
way and this is determined by, “the formal equality of the contestants”.32 This is a
factor which is missing in a plea bargaining relationship.
The question that remains to be answered is whether the cost of the defendant coop-
erating with the prosecution and virtually relinquishing their 5th and 4th Amend-
ment rights in the U. S. and their Article 6 of the ECHR rights, is to be encouraged
as a means by which to prove their innocence.33 A criticism of this system is that
it requires too much of the defendant in that they waive their right to silence. The
emphasis upon the fact and truth-finding process in the U. S. system is redundant
in that most of the cases (95%) do not reach the trial stage but as we know are
resolved by the means of the plea.
In the inquisitorial system emphasis is placed on finding the truth through an ob-
jective, and sharing of information process. The adversarial process places emphasis
upon having advocates who are fighting to find the truth from the evidence which
best supports their case in this way this system avoids the tunnel vision of the
inquisitorial system. American scholars have argued for a combination of the two
which reconciles the crime control and due process models with a bridge called “re-
liability”. This approach serves the interests of all involved.34 One of the suggested
models is that the defendant should be able to elect to have an “innocence proce-
dure” carried out. The benefits of this procedure is that it is suggested that the
defendant will then be within a system which then is concertedly looking for the
truth as opposed to the guilt of the defendant. There are several problems with this
model in that firstly, any procedure should be looking for the truth, whatever that
be or look like, also if a defendant elects to remain silent (which within the U. S. is
31
Koppen, Adversarial versus Inquistorial Justice.
32
Ibid.
33
K. A. Findley. “Adversarial Inquisitions: Rethinking the Search for the Truth”. In: N.Y.U. L.
Rev. 56 (2011/12), pp. 911–941.
34
Ibid.
140
5.1 The presumption of innocence
their constitutional right) then it is possible they will be punished for not exercising
their right to elect an “innocence procedure”. With this option of choosing to remain
silent there is the inherent presumption that it is only the guilty who would choose
to remain silent and not the innocent.3536 Additionally, an innocence procedure re-
quires the defendant to waive some of their confidentiality rights so that the other
side can better examine their documents so as to ascertain their innocence.
What both of these systems have in common,
“(...) is that the outcome of a case is usually determined long before
the trial (or plea), that is, at the administrative investigation stages. If
truth and reliability are the objectives, therefore, what really must be
done is improve the quality of the evidence gathering and interpreting
at the initial investigation stages.”37
With this in mind it is also necessary to consider another element which plays an
integral role with the gathering evidence, that of the presumption of innocence.
The presumption of innocence has its beginnings in the French Declaration of the
Rights of Man and Citizen (declaration des droits de l’homme et du citoyen) where
it is stated that, “Every human must be presumed innocent until he is found guilty.”
This was again reiterated in the Universal Declaration on Human Rights and then
in Article 6 (2) of the ECHR.
The first tentative steps at interpreting the presumption of innocence have been
particularly restrictive.38 This restrictive interpretation limited the presumption
to being applicable only to the trial proceedings. As the case law of the ECtHR
developed it has become clear that in order to infringe the presumption of innocence
the trial proceedings do not have to have commenced.39 The European Commission
35
C. Durocher. “Are We Closer to Fulfilling Gideon’s Promise? The Effects of the Supreme Court’s
“Right-to-Counsel Term””. In: Issue Brief American Constitution Society for Law and Policy
7 (2013), pp. 103–118.
36
Findley, “Adversarial Inquisitions: Rethinking the Search for the Truth”.
37
Ibid.
38
L. Blutman. “Az ártatlanság vélelmének hatóköre az európai alapjogokban”. In: Acta Juridica
Et Politica Tomus LIII. Fasciculus 5 (1998), pp. 59–76.
39
Ibid., p.59.
141
on Human Rights in 1960 stated that the presumption of innocence is a guaranteed

principle but it took them until nearly 10 years to establish that the presumption
guarantees procedural safeguards.
Several of the cases before the ECtHR and the Commission applied a strict inter-
pretation that the presumption of innocence is a rule of evidence and nothing more.
In Minelli v Switzerland40 it was deemed that because the application of Article
6 (2) is not clear “it could not be accepted that it extended to the establishment
of the truth in a criminal prosecution for defamation.”41 In the case of Funke42 the
right to be presumed innocent until proven guilty did not place a restriction upon
the evidence given to the prosecution. This was controversial as the evidence was
obtained in a way which could possibly have infringed Article 8. Both of these cases
were followed by Ribemont which widened the interpretation of the presumption of
innocence. The case concerned remarks that were made by the Minister of the Inte-
rior and Senior Police Officer in the media before the case was heard. The applicant
argued that not only were their remarks defamatory they were also damaging to his
right to the presumption of innocence. The Court held that;
“The presumption of innocence enshrined in paragraph 2 of Article 6
(art. 6-2) is one of the elements of the fair criminal trial that is required
by paragraph 1 (art. 6-1) (see, among other authorities, the Deweer v.
Belgium judgment of 27 February 1980, Series A no. 35, p. 30, para.
56, and the Minelli judgment previously cited, p. 15, para. 27). It
will be violated if a judicial decision concerning a person charged with
a criminal offence reflects an opinion that he is guilty before he has been
proved guilty according to law. It suffices, even in the absence of any
formal finding, that there is some reasoning suggesting that the court
regards the accused as guilty (see the Minelli judgment previously cited,
p. 18, para. 37).”43
This opinion, “that he is guilty before he has been proved guilty according to law”
reinforces the position that we can not speak about innocence (non-guiltiness at the
most) and neither presumption for lack of a presumptive fact but “quasi presump-
40
Judgment, Strasbourg,25 March 1983 Application No.8660/79
41
Minelli v. Switzerland, Judgment, Strasbourg,25 March 1983 Application No.8660/79, para 14
42
Funke v France, Judgment, Strasbourg,25/02/1993, Application No. 10828/84
43
Allenet De Ribemont v. France, Judgment, Strasbourg,10 February 1995, Application No.
15175/89, para 35.
142
tion” at the most according to Tibor Király.44

Tibor Király is not alone in this opinion the loss of the right to the presumption of
innocence as the consequence of the guilty plea and/or confession lends muster to
his stance. The presumption of innocence (in common law systems) was introduced
in part as a mechanism by which to counteract
“the overwhelming power of the state to shift the margin of error in
the direction of convicting the innocent at the expense of acquitting the
guilty.”45
Tadros lists five different concerns which pertain to the interference with the pre-
sumption of innocence.46 The most significant concern relates to the purpose of the
criminal trial which is to convict those who are known to have committed an of-
fence. In this way, the interference with the presumption of innocence is always a
frustration of the purpose of the criminal trial.
The history of the application of the presumption of innocence in cases such as
Woolmington and Coffin concerned a very narrow question of the use of evidence.
The Supreme Court Justice Rehnquist further limited the application of the pre-
sumption of innocence to be below the burden of proof.47
In the United Kingdom, the presumption of innocence has been interpreted as being
one of the constitute parts of the right to a fair trial as determined by the case of
the Attorney General’s Reference No 4 of 2002 [2004] UKHL 43. Lord Bingham,
the great defender of liberty, stated that the,
’presumption of innocence ought to be protected for the ’essentially sim-
ple’ reason ’that it is repugnant to ordinary notions of fairness for a
prosecutor to accuse a defendant of crime and for the defendant to be
then required to disprove the accusation on pain of conviction and pun-
ishment if he fails to do so.’48
The presumption of innocence is not to ensure that the prosecution and the defence
44
T. Király. “The Defence and the Defender in Criminal Cases”. In: KJK, Budapest (1962), pp. 11–
48.
45
46
47
L. M. Natali and E. D. Ohlbaum. In: International Criminal Procedure Symposium. Ed. by J.
S. Greenberg. Temp. L. Rev., 1989. Chap. Redrafting the due proces model: the preventive
detention blue print. P. 1236.
48
143
have equality in preparation but that it can be shown that the convicted person
committed the correlating offence.49
In the U. K., the House of Lords decision in the case of Woolmington v Director of
Public Prosecution50 it was stated that the presumption of innocence is like a golden
thread which runs through the criminal law of England.51 In Woolmington v DPP52
it was firmly established that the burden of proving guilt was upon the prosecution.
The appeal was granted in Woolmington as the judge had wrongly directed the jury
that they could presume malice. This was incorrect as malice has to be proved. Lord
Sankey’s judgment contained, what has now famously become known as, the Golden
Thread which runs through the English legal system. This Golden Thread is that
the burden of proof is placed upon the prosecution (except for some circumstances
such as the defence of insanity) and the defendant is presumed innocent.
In the midst of the quest for the truth is the ever pervasive concept of the presump-
tion of innocence and beyond all reasonable doubt standard. In 1897 James Bradley
Taylor wrote an article concerning the presumption of innocence in criminal cases
where he asserted that very little of the American literature (up until that point) dis-
cussed this matter of the presumption of innocence but rather the importance that,
“the rule that a party must be proved guilty by a very great weight of evidence.”.53
Taylor discusses in length the importance of the trial and the role of the trials.
Taylor also considers the impact upon as well as the need for guidance for the jury
in remembering and determining the presumption of innocence. This concept of
the trial, in the traditional meaning of the word, has changed significantly and it
is no longer always necessary to remind the jury of the presumption of innocence
as the defendant does not proceed to trial in all situations because of the practice
of plea bargaining. Rather it is the prosecution and or the State that has to be
reminded that a defendant is presumed innocent until proven guilty. This situation
is becoming ever so farcical as we are no longer interested in the proving of guilt as
we are in obtaining the admission of guilt or even a confession. As such the face of
the criminal trial and its legal safeguards are being shifted but there are no adequate
49
50
[1935] UKHL .1.
51
A. Gray. “Constitutionally Protecting the Presumption of Innocence”. In: Tas. Univ. L. R. 31
No 1 (2012), pp. 131–152.
52
(1935) AC 462
53
James Bradley Thayer. “The Presumption of Innocence in Criminal Cases”. In: Yale L. J. Vol.
6, No. 4 (1897), pp. 185–212, p. 190.
144
ones to replace them that now make sense in the face of this new version of a trial.
It was generally agreed upon by the legal scholars and academics of Taylor’s time
that the clearest, and possibly only, way to show guilt was through the, “... clearest
evidence.”54 This element of having to show the, clearest evidence, is somewhat made
redundant by the plea bargaining process and so also the, beyond all reasonable
doubt standard does not also have to be met. In this way two fairly significant
safeguards no longer apply for the criminal defendant.
“It is sometimes said that the presumption will tip the scale when the
evidence is balanced. But, in truth, nothing tips the scale but evidence,
and a presumption - being a legal rule or a legal conclusion - is not
evidence.”55
With regards to the presumption of innocence the maxim of Blackstone is most
commonly evoked, “It is better that ten guilty persons should escape than that one
innocent person should suffer.” This maxim, however, has its historical roots dating
back to the Emperor Trajan where it was stated, that it was better for a guilty
person to be unpunished rather than an innocent one should be condemned.56 A
similar version was attributed to Fortescue in the 15th Century, where it was stated
that he said, “Truly I would rather that twenty guilty men should escape through
pity than that one just man should be unjustly condemned.”57
The picture that emerges from these legal theorists is that it is, far, better to run
the risk of letting a guilty person or guilty persons go free than rather to convict an
innocent person or innocent persons.
At an international level the principle of the presumption of innocence has been
enshrined in international law in the ICCPR. Article 14 (2) of the ICCPR states
that,
“Everyone charged with a criminal offence shall have the right to be
presumed innocent until proved guilty according to the law.”
The right to the presumption of innocence is connected to the right to a fair chance
to present a defence. These two concepts are rooted in the sanctity of the principle
of the equality of arms which is the uniting cord through which the presumption of
54
Thayer, “The Presumption of Innocence in Criminal Cases”, p. 203.
55
Ibid., p. 212.
56
Ibid.
57
Ibid.
145
innocence and the rule of law requirements flow. These principles are irrelevant if
the right to have access and assistance to efficient counsel is contravened.
In the case law of the U. S. the case of Coffin v. United States58 established the
importance as well as the essential nature of the presumption of innocence.
“The principle that there is a presumption of innocence in favor of the
accused is the undoubted law, axiomatic and elementary, and its en-
forcement lies at the foundation of the administration of our criminal
law.”
This case however, did not do much address to the question of the presumption of
innocence as it did the question of the Confrontation Clause which is enshrined in
the 6th Amendment. This case was then followed by Maryland v. Craig59 and Coy
v. Iowa60 both of which concerned similar issues both factually and legally. Coy v.
Iowa established that the judge will be deemed as having discharged their duty of
directing the jury if they inform them of the defendants right to the presumption
of innocence. There would appear to be no need for a fixed formulaic direction to
the jury. It will suffice so long as the judge mentions the right of the defendant to
be presumed innocent unless the evidence, and based upon that evidence, beyond a
reasonable doubt it is proved that the defendant is guilty of the charges with which
he is charged.
The subsequent decisions in these cases asserted that the presumption of innocence
is an illusion but rather that there is a presumption of guilt.
The defense then is placed in a position whereby they must bring the case and show
that their client, the defendant, is not guilty.
In the midst of these arguments the point is made that there is a distinction between
the “factually innocent defendant” and the “legally innocent defendant”. This dis-
tinction impacts upon the weight of the presumption of innocence requirements.61
Winter makes the argument that the practice of “bargain justice” is beneficial and
that we should not be so quick to dispose of it as it serves a good purpose. Winter’s
approach is favourable in that the practice of plea bargaining does have a role to play
58
156 U. S. 432; 15 S. Ct. 394
59
(89-478), 497 U. S. 836 (1990)
60
487 U. S. 1012 (1988) No. 86-6757
61
T. W. Church Jr. “In Defense of "Bargain Justice"”. In: Law & Soc’y Rev. Vol. 13,2 (1979),
pp. 509–525.
146
but the reasons he gives for supporting these arguments are not particularly con-
vincing. Winter states that the distinction between “factually” and “legally” guilty
are important because they remove this tension of having breached the presumption
of innocence.62 When someone is “legally” guilty the question of the presumption of
innocence (so it is argued) loses its potency because the individual is guilty. Whereas
when one is “factually” guilty then for this individual when they are deemed to be
“factually” innocent it is presumed,
’that such blameless defendants are necessarily exonerated at trial.”63
The problem with the approach of the prosecution is that they start from the premise
that the majority of criminal defendants are guilty and when they offer them the
plea bargain they consider them to be at least factually guilty. This mindset of the
prosecution is at complete odds with the presumption of innocence. More worrying is
the fact that in the context of a plea bargain it is the factual guilt which is presumed
resulting in a shift from the presumption of innocence as being a legal obligation to
one which is factual. “The presumption of innocence is thus a normative directive
to criminal justice personnel; it does not require legal officials to assume that all
criminal defendants are factually innocent.”64
In these situations both types of defendants, that is the “factually” as well as the
“legally” guilty, “exchange their chance of complete exoneration for the security of a
judgment less onerous than that which might be imposed after trial. Each party thus
trades the possibility of total victory for the certainty of avoiding total defeat.”65
Winter in the conclusion of his article when arguing not for the complete abolition
of the plea bargain tool argues for the incorporation of, “a significant reallocation of
responsibility for the conduct of the case from counsel to judge, possibly along the
lines of the continental “inquisitorial” system.”66
Winter’s position is interesting in that he posits the inquisitorial model as being a
viable alternative. Winter views this model as a means by which the plea bargain
can be effectively retained without conflicting with the due process of the defendant.
This point of view is naive as it will be illustrated that the inquisitorial models have
also had obstacles incorporating plea bargaining derivatives without conflicting with
62
Church Jr, “In Defense of "Bargain Justice"”.
63
Ibid., pp. 515–516.
64
Ibid., p. 517.
65
Ibid., p. 518.
66
Ibid.
147
constitutions.
The Supreme Court Judges have established that the presumption of innocence is
a, “basic component of a fair trial under our system of criminal justice.”67 Despite
these broad sweeping statements that the presumption of innocence is integral to
the trial and is the bedrock of fairness for the defendant in a trial there is very
little consensus as to what exactly this presumption of innocence means. There are
some, like Laufer, who take it to encompass a wide scope but it is generally agreed
that, “the presumption is widely described as grounding the claim that the burden
of proof falls exclusively on the prosecution in a criminal trial (...).”68
The debate concerns to whom and when it applies as well as whether the principle
has legal standing on its own or whether it is part of the standard of proof.69
Additionally, the model federal jury instructions in the U. S. say specifically that,
“The presumption of innocence alone may be sufficient to raise a reasonable doubt
and to require the acquittal of a defendant.”70 . This is quite a broad statement
in which a juror would be entitled to acquit any defendant no matter how much
evidence was against them if the juror were to take this instruction quite literally.
Laudan identifies the time scale for when the presumption of innocence applies as
being determined by the Supreme Court as when the trial commences and how it
also applies within the trial itself.71 This is vitally important for the application of
the plea bargain for the defendant because he is being treated as if they were guilty
of the crimes.
If Packer’s due process model was adopted it would come apparent that this model
focuses on protecting the individuals freedom. As such the defendant’s presumption
of innocence would only find it has or bears any advantage for the defendant when
it comes to the acquittal stage rather than protecting their liberty.72
When discussing the importance of the presumption of innocence for the defendant
it quickly becomes evident that this is most often only discussed within the context
of the trial. The presumption of innocence is not often perceived as applying to
67
Estelle v. Williams, 425 U. S. 501 st 503 (1976)
68
L. Laudan. “The Presumption of Innocence: Materail or Probatory?” In: U. T. L. Sch. (2008),
pp. 1–36.
69
Ibid., p. 2.
70
Ibid., p. 3.
71
Ibid., p. 4.
72
S. Baradaran. “Restoring the Presumption of Innocence”. In: Ohio St. L.J. 72 (4 2011), pp. 724–
776, pp. 756–757.
148
the pre-trial stage. Instead what becomes apparent is that there is a reverse onus
provision where the defendant bears the obligation, as in the plea bargain, to prove
their own innocence or not at all and just accept the determination of their guilt for
a lesser sentence.
Invariably there are tensions between having an efficient and expedient trial. There
is a need to find room for the safeguards which protect the sanctity of the trial and
also those that apply to the pre-trial stages. It must then be decided whether the
safeguards of the trial also apply to the pre-trial. The fallout of circumventing the
trial is that the ECtHR requirement of an effective defence is called into question.
The effective defence required by the ECtHR is the key intertwining concept
that is pivotal. It is this practice which the ECtHR has and is clearly defining
for the Member States. There is growing understanding as to how the defendants
rights ought to be realised. The attention of the ECtHR has so far focused on the
relationship between the lawyer and their client in terms of access to legal aid. The
relationship between effective defence and plea bargaining has not been explored by
the ECtHR. The opportunity to do so in the case of Natasvlishvili and Togonidze v.
Georgia73 was not seized upon by the majority apart from the partly dissenting
opinion of Judge Gyulumyan. The U. S. case law (which is plentiful) illustrates that
the problem of an effective defence has been and sadly still is a deeply prevalent
problem when it comes to the practice of plea bargaining.
The lack of an appropriate consideration of an effective defence in plea bargaining
leads to lack of depth in the administration of justice resulting in a variant of rough
justice.
Rough justice is used when it is for the ’greater good’ of the majority. This practice
is most often used in the post-totalitarian regimes where it is the most appropri-
ate tool for bringing to justice those who committed atrocities under the previous
government. This mechanisms allows for the widest possible distribution for justice
rather than conducting it on an individual level which would be virtually impossible
to achieve for logistic and economic reasons.74
Tucker asserts that societal changes have an positive affect upon the reducing the
depth of justice and hence result in a release of productive resources which in turn
will help with the expansion of the scope or accuracy of justice. These changes
73
74
149
that have been implemented by the states to reduce the “roughness of retributive
justice” would have not been possible earlier due to the fact that the administrative
framework did not exist. This meant that there were not enough lawyers or public
resources to ensure that every single defendant was granted the right to counsel.75
There is a different agenda for the the politician and the human rights lawyer when
it comes to the implementation of indigent defendant protection laws. The politi-
cians aim is to implement legislation which will satisfy the broadest electorate base
whilst the lawyer, uneffected by public opinion, is solely concerned with the interests
of their client. These competing interests are the ethics of social responsibility, a
consequentalist approach which justifies means by ends versus “the ethics of moral
conviction”, which is founded on the duty to respect the rights of others irrespec-
tive of the consequences.76 Consequentalism is much more focused upon the effects
and results that certain decisions would have on the population rather than the
individual.
’Rough justice offers a broader scope of justice by compromising on its
accuracy.’77
The proponents of plea bargaining, as shown in more detail later on in this thesis,
support more of a consequentalist concept of justice where,
’... in the rhetorical context of political arguments in favor of rough
justice; crime prevention would be served by putting away the guilty,
even if few innocents are also swept along.’78
In order to be able to employ an effective consequentalist approach, a clear view
of the results ensuing from the decisions of justice being made is required. Where
it is impossible to know what the consequence might be, it is better to do the
deontologically right thing rather than attempting to predict what the right result
might be.79
The central premise for an impartial hearing is that the innocent are not convicted.80
All legal systems involve some mechanisms by which the innocent are convicted and
75
76
Ibid.
77
Ibid.
78
Ibid.
79
Ibid.
80
M. Bagaric. “The Right to an Impartial Hearing Trumps the Social Imperative of Bringing
Accused to Trial Even ’Down Under’”. In: Crim. Law and Philos 4 (2010), pp. 321–339.
150
safeguards have evolved in criminal justice systems to protect against this eventuality
whilst preserving the impartiality of the trial. Bagaric argues that,
’guarding against wrongful convictions has been overstated at the same
time as bring the accused to trial has been exaggerated.81
Bagaric adopts a consequentalist approach for the securing of the right to a fair trial
and recognises that in some cases, the innocent will be convicted. He takes the view
that sometimes it will be appropriate or necessary for a government to infringe a
right to protect a more important one. The example used is a terrorist case. Despite
the pre judgment received by a suspect, this does not warrant a stay in proceedings
as it will be difficult to have an impartial trial.82
’The importance of a fair trial in the context of the criminal law system
was underkined by Deane J in R v. Jago when he stated that: ’the
central prescript of our criminal law is that no person shall be convicted
of a crime otherwise than after a fair according to law ’83
Despite Deane J statement in the case of R v Jago84 , three years later in the case of
Dietrich v R,85 Deane J withdraws the certainty of his conviction, “ that no person
shall be convicted of crime otherwise than after a fair trial according to law.” Deane
J recognises that his previous position was that,
’While the law’s insistence that there be no conviction without a fair trial
according to the law has been long established, the practical content of
the requirement that a criminal trial be fair may vary with changing
social standards and circumstances.’ (emphasis own)
If the right to a fair trial is sidestepped so are the procedural guarantees that protect
the defendant. Even if a defendant makes it to trial, there are no guarantees that
an innocent defendant will be found innocent. An empirical study conducted by
the Royal Commission on Criminal Justice in 1993 revealed that 11% of people
who plead guilty claim innocence. They pleaded guilty in response to institutional
pressures and the guilty plea discount.86 The benefits of an early stage guilty plea
81
Bagaric, “The Right to an Impartial Hearing Trumps the Social Imperative of Bringing Accused
to Trial Even ’Down Under”’.
82
Ibid.
83
Ibid., p. 337.
84
168 CLR 1 at p 56.
85
[1992] HCA 57, [3]; (1992) 177 CLR 292
86
Royal Commission on Criminal Justice, U. K., 1993.
151
5.2 Conclusion: Calling your bluff
has institutional benefits which must be weighed against the fact that those who
plead may not always be guilty.87
The presumption of innocence can be divided into two elements. The first is that
it can be used as an instrument of proof or a shield against premature punishment.
Within the countries which legal systems follow a predominantly Latin root we
find that there is an emphasis placed upon the presumption of guilt. Whereas
within the Anglo-American systems it was traditionally accepted that there was the
presumption of innocence.88 This is not such a true distinction anymore as in the
19th Century the U. S. Supreme Court adopted a very narrow interpretation of the
presumption of innocence.
Taking France as an example Quintard-Morenas sought to demonstrate that the
Anglo-American approach to the presumption of innocence is not what it ought to
be. France has two distinct functions for the presumption of innocence, one as a rule
of proof and the second as being the shield against which one can be protected from
being presumed guilty until proven innocent. In the Anglo-American context the
presumption of innocence is seen as being an evidential doctrine with no application
before trial.89
The approach of the Anglo-American lawyer to the presumption of innocence as
being a justified mechanism by which to portray the accused guilty would, in the
French context,90 be deemed as constituting a violation of the law. It was not always
the case that the presumption of innocence did not apply before the trial. England’s
adversarial system lends itself to the use of the maxim both before and after the
trial.
The approach that was subsequently adopted in the U. S. (and most of the common
law countries), is asserted by Quintard-Morenas as going against the social contract,
“in which society, by prohibiting private vengeance and guaranteeing the right to
87
Royal Commission on Criminal Justice, U. K., 1993.
88
F. Quintard-Morenas. “The Presumption of Innocence in the French and Anglo-American Legal
Traditions”. In: Am. J. Comp. L. 58 (2010), pp. 107–149.
89
Ibid., p. 108.
90
Ibid., pp. 108–109.
152
be tried by an impartial jury, acknowledging that there is a time for innocence and
a time for guilt.”91
There is a general requirement that the defendant be considered innocent between
the stages of accusation and judgment. It is this intermediary status which is lacking
for those engaged in the plea bargain that they are not entitled to this status of
innocence.
“Denying the accused the “intermediate process” between accusation and
conviction is violating an elementary principle of justice.”92
Johannes Monachus is most commonly associated with coining the term, “innocent
until proven guilty”. It was he that argued the right of the accused to due process
and that everyone is presumed innocent until proven guilty.93
The the development of the presumption of innocence has evolved into its current
form where it predominantly focuses on the trial and the pre-trial labelling of the
defendant. An apparent blind spot is the morphing of the trial into pre trial justice.
Just as the presumption of innocence shifted to comply with the need to be heavy
with crime it also has not morphed quickly enough with the need for pre-trial justice
in light of the calls of modern day justice to be expedient and efficient. The current
jurisprudential concepts are antiquated and are behind the times with respect to
the presumption of innocence. The case law of the ECtHR illustrates that there
is a time delay between the new implementations of justice and the procedural
safeguards. The various interpretations of the Article 6 (1), (2) and (3) are obstacles
to the realisation of a fair trial. The E. U. is seeking to find solutions to these
discrepancies but not addressing the root problems is like conducting surgery while
blindfolded. The only results possible are death and a malpractice suit. The practice
of torture was seen as a very clear example of a contravention of the principle of the
presumption of innocence for why would you torture an individual who is presumed
innocent unless you were sending the very clear message that you indeed presumed
them to be guilty. Those who managed not to confess under torture sometimes
were released from jail and faced the same stigma attached to those who had indeed
pleaded guilty, this way they were,
91
Quintard-Morenas, “The Presumption of Innocence in the French and Anglo-American Legal
Traditions”, p. 109.
92
Ibid., p. 112.
93
Ibid., p. 112.
153
“Neither perfectly innocent nor entirely guilty,”94

This is a situation that the defendant who is offered a plea bargain finds themselves.
As has been noted above the position of Thayer in the 19th Century was that the,
“presumption of innocence constituted nothing more than an instrument of proof
casting on the prosecution the burden of proving guilt.”95 This is a very narrow in-
terpretation of the presumption of innocence which has been gaining ever increasing
traction. Despite the overall recognition in the 19th Century that individuals, until
they are proven guilty must be treated as if though they were innocent, the practice
of torturing defendants and ill treating them had begun. In England the “rule of
proof” was first formulated in the Woolmington case96 .
What started in the 19th Century with the presumption of innocence being viewed
as nothing more than an evidential principle was reinforced by a series of cases
which further embedded this mentality that, “the maxim as simply another way of
expressing the traditional rule putting the burden of proving guilt beyond a rea-
sonable doubt on the prosecution.”97 In the U. S. Supreme Court case of Bell v
Wolfish98 and Coffin (see above) the court referred to the presumption of inno-
cence as a doctrine which is an “instrument of proof” which is different from the
“reasonable doubt” standard.99 During this time in England it was recognised as
being a substantive right. Several of the concerns over allowing the presumption of
innocence to apply beyond the trial concern things such as the perception of the
innocence of the yet to be proved guilty defendant such as what can the journalist
print and write about the defendant. Are the rights of the defendant curtailed in
anyway which could send the message that they are being presumed guilty before
the prosecution has actually proved it?This approach has an impact upon the plea
bargaining process which is not considered to be a practice which impinges upon
the presumption of innocence as the plea bargain completely circumvents the whole
trial process. As such the cycle is broken and taking the whole process outside of
94
Ibid., p. 121.
95
96
[1935] A. C. 462, 481, “Throughout the web of the English Criminal Law one golden thread is
always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt...”.
97
98
441 U. S. 520 (1979)
99
154
the bounds of the normal rules of the trial procedure. There are questions which
are raised in conjecture with this process in that what happens when the defendant
upon appeal then seeks to assert that there was an irregularity which then nulli-
fies their sentence for example ineffective assistance of counsel? How can they then
be presumed innocent until proven guilty? The bias which is then presented before
them is almost insurmountable. The presumption of innocence, is so often perceived
as an evidential rule, the argument goes that it cannot be used nor does it have any
application whatsoever to the pretrial stage of the trial.
The second limb of the presumption of innocence places plea bargaining in uncom-
fortable territory as,
“... it is also a shield that prevents the infliction of punishment prior to
conviction.”100
It is quite clear that this shield has not been applied and is not being applied to the
defendant prior to conviction when the prosecution offers them the plea bargain. It
makes it difficult to logically maintain the semblance of the presumption of innocence
at this stage in the proceedings. This fallacy raises the question as to whether it has
to be suspended for the sake of the overall trial and the securing of a subsequent
conviction
The argument could be mounted that one of the reasons why the legal arguments
against the practicing of plea bargaining have failed is because it has always been
couched in terms rather of expediency than efficiency. This argument has resulted
in limiting the debate to problem of “bargained justice”. It is time for a new angle
as we have been approaching this problem from entirely the wrong perspective.
This practice of plea bargaining is requires us to rewrite our jurisprudential thought
on the application of the presumption of innocence. Effectively the presumption
of innocence is being written out of our texts books and becoming a prehistoric
dinosaur of the law. Our arguments should not be about expediency and efficiency
because no matter how we look at the problem courts are backlogged. There is
no denying that a solution is needed. The solutions which have been tried have
resulted in the basic principles being sacrificed which is a far more dangerous route.
Change is inevitable and good even but not when you have to compromise the basic
principles upon which the very social contract that society engages in is based.
100
155
There are two key principles which can be identified that the accuser bears the
burden of proving the guilt of the accused and that, “until guilt is established by
conclusive evidence, society has no right to treat the accused as a criminal.”101102
The conclusions all point to the fact that the role of the presumption of innocence in
the plea bargaining relationship has been woefully overlooked. It has become a legal
black hole which when entered into results in legal uncertainty whereby a defendant
rather than enjoying the right to be presumed innocent is presumed guilty. It is the
sad truth that some defendants plead guilty when in actual fact they are innocent.
Others may be guilty but not of the specific question that they are being charged
with.
The recommendations outline that the narrowing of the application of the presump-
tion of innocence to just the in trial matters does not truly reflect the nature that
over 90% of cases do not even reach the courts in the U. S. and in the U. K. The same
number applies to the fact that most cases are disposed of in the magistrates courts,
in the U. K., that is not before a jury. This narrow application of the presumption
of innocence does not conform with the reality that most cases are decided before
the actual trial itself. This has created a legal fallacy which is being perpetuated in
that the defendant is sometimes being persuaded not to exercise their constitutional
and fundamental right to a trial. Additionally and maybe even more worryingly is
the fact that defendants are not only waiving certain procedural protections they
are also waiving the right to be treated as innocent until proven guilty. This has far
reaching consequences for the appeal procedure. If the defendant who accepts a plea
bargain who is then declared guilty mounts an argument of ineffective defence they
then will have to be presumed innocent on appeal. This creates a situation where
we are asking our judiciary and juries to perform mental gymnastics in ignoring
previous admissions of guilt.
These ideas prompt the question What is the current goal of justice systems? The
thesis will detail and show that that there has been a seismic shift in the foundational
practice of criminal law and that jurisprudential concepts are struggling to provide
a satisfactory reaction. Academics and theoreticians are playing catch up to legal
systems developing outside of the rule of law and due process. Parallel systems,
101
Ibid., p. 112.
102
see Demosthenes in 352 B. C. , “for no man comes under that designation until he has been
convicted and found guilty.” In Roman law see the Constitution of Emperor Antonin of A. D.
212 which states the following, “He who wishes to bring an accusation must have the evidence.”
156
masquerading as justice, have now been thrust into the limelight from the shadows.
Their ascension in popularity has come from a host of miscarriages of justice and
proposed reforms to the law in various countries.
It is nonsensical to talk of the defendant in the plea bargaining relationship having
the right to be presumed innocent because part of the bargain is that they admit their
guilt. This situation simply reinforces the fact that the presumption of innocence
only applies to the in trial scenario.
157
6 Plea Bargaining: the Benefits as
well as the Pitfalls
The natural progress of things is for liberty to yield and government to

gain ground. - Thomas Jefferson.
6.1 Defining plea bargaining
It is generally agreed that plea bargaining takes the form of an agreement between
the prosecution and defence upon which the defendant admits their guilt in return
for a reduction in their charge or sentence. This form of plea bargaining is generally
known as prosecutorial plea bargaining. This process can take place before the judge
in their chambers with both the parties present and the judge will indicate what the
probable charge will be in return for the guilty plead. This practice is known as a
private chamber meeting.
Private chambers meetings run counter to the concept of Article 6 , where justice
should be administered in public save when it is not in the public interest to do
so. It is publicity which ensures that all are subject to the rules of the trial and
they themselves are subject to justice.Article 6 also provides further protection of
the right to have a decision decided in public by stating that the ECHR has held
to be applicable to the sentencing stage as well of the trial. Plea bargains that are
decided in the privacy of the judge’s chambers runs completely counter culturally to
the legal principles that justice should be public, transparent as well as ’being seen
to be done’. Central to the concept of the principle of equality of arms is that the
case law has developed the appearance test. This seeks to ensure not only equality
between the parties but also that the general public maintain and have their faith
restored in the mechanisms of the administration of justice.
158
There are several reasons for plea bargaining being used as a tool by the prosecution
as it has its advantages as a means by which to speedily dispose of a trial securing a
favourable verdict. The prosecutor is the sole holder and controller of the criminal
procedure.1 The attractiveness of this model for the prosecutor lies in three stages.
Firstly, the prosecutor induces the defendant into engaging in the plea bargain with
some offer, secondly, the defendant then admits their guilt to the crime and finally
there is the waiver of their right to a fair trial.2 The result of these three stages is
that the prosecutor is then alleviated of having to prove guilt. The standard of
“beyond all reasonable doubt” is sometimes a too high of a standard to reach.
A direct consequence of the use of plea bargaining is that in both the U.S and the
U.K. the jury trial has been replaced by the reality that the courts need to make
justice more cost effective.It is a sad reality where the cost of justice is too costly
for defendants to claim their constitutional right to a trial. In this way the U.S.
Federal Rules of Criminal Procedure enable the prosecution to use the sentencing
differential as a means to being coercive in the plea bargaining process. Federal Rule
11 (d) of the Rules of Criminal Procedure set out certain guidelines for the court
when accepting a defendant’s guilty plea. Firstly, the Court cannot accept a guilty
plea without first determining, in open court, from the defendant, “that the plea
has been made voluntarily and was not the result of threats or of promises apart
from a plea agreement.”3
The problems with plea bargaining are multi-faceted, as we will see below, such as
encouraging defence counsel to persuade their clients to accept offers which may not
necessarily be the best (ineffective assistance of counsel claims). Defence counsel
are notoriously underfunded and under resourced but if we are to adopt a system
of plea bargaining into the justice system then there also needs to be an obligation
placed upon the prosecution to document the plea bargains that are offered. The
prosecution also have an obligation to the State to ensure that justice is served as
such they too should also share the burden with the defence of seeing that justice
is done.
It is naive to presume that there are not problems within the justice systems due
to the present financial crisis. As such the plea bargaining model is becoming an
1
J. H. Langbein. “Torture and Plea Bargaining”. In: U. Chicago Law Rev. 46, No.1 (Autumn,
1978), pp. 3–22.
2
ibid.
3
FED. R. CRIM. P. 11 (d)
159
attractive one in times of austerity

There are also benefits for the defendant in accepting a bargain in that there nor-
mally follows a significant reduction in penalty as well as an agreement over the
terms of the confinement. For most defendant’s the fact that the case will speedily
disposed of is an attractive option.
Despite the evident positives for both sides engaging in this practice there still
remain numerous pitfalls. The most evident concern is that innocent defendants
will plead guilty to a crime they did not commit. This practice also erodes the
fundamental principle that trials as well as the administration of justice ought to be
public. Related pitfalls are that the bargain serves to reduce the impact of deterrence
when the litigation moves from a question of whether to one of how much time the
defendant should get in the particular circumstance. As will be noted below in the
case analysis of plea bargaining the very term ’bargain’ can provide an unhelpful
impression in that there is a very real bias towards the acceptance of a bargain
because of the fact that the prosecutor has the weight of the State behind them.
Consequently, the defendant waives their rights and privileges. As such it can be
said this process serves to undermine the procedural safeguards of the defendant.
If plea bargaining is to be embraced as part of our modern legal systems then it will
be necessary to remove issues of uncertainty with regards to the sentencing brackets.
This is necessary to enable a defendant to make an informed decision concerning
their acceptance of the plea bargain. This may serve to keep the offer of a plea within
reasonable parameters and remove undue pressure and coercion by the prosecutor.
Equally the defendant should not be allowed to manipulate the process by accepting
or employing a strategic ’choice of the moment’ tactic even though plea bargaining
is invariably made up of tactics by both of the parties to the proceedings.
Article 9 of the Union Internationale des Avocats International Charter of Legal
Defence Rights states that judicial proceedings must be in public and "Every sen-
tence passed in a criminal or civil matter must be made in public, except where
the interests of minors are concerned or where the trial is concerned with matrimo-
nial differences or the care of children."4 The plea bargain can be broken down into
four distinct areas: charge (this can be further divided into multiple and unique
charge(s)), sentence, fact and Alford pleas. Alford pleas are when the defendant
4
Constitutional Implication of Plea Bargaining by Peter Charleton SC and Paul Anthony McDer-
mott BL http://www.lawlibrary.ie/documents/publications/petercharleton.pdf (accessed on
the 22nd of July 2013)
160
pleads guilty; accepts the sanction and or the punishment but maintains their in-
nocence throughout the whole of the proceedings. The phenomenon of Alford pleas
originates from the U.S.
The immediate problem with plea bargaining is that it automatically assumes and
portrays a relationship of equality,particularly with respect to bargaining power in
that both parties have something that the other one wants. In reality, this is far
from the truth.
There are several reasons for employing a plea bargain tactic. In most cases, it
brings a speedy charge, it has financial benefits by not spending money on a full
trial and other subsequent expenses, it improves the prosecution statistics for suc-
cessful prosecutions and for certain types of crimes, it can help to catch the bigger
fish. There are negative implications for adopting this methodology which include a
higher risk of racial motivation and detriment for the indigent defendant. The plea
bargain can sometimes be wielded as a means of threatening someone into pleading
in a certain way.
Plea bargains, particularly in the U. S., have now become an integral part of the
criminal justice system. Most Constitutions provide for the protection of individuals
rights against arbitrary imprisonment by the State as well as ensuring that ones
liberty is protected by certain criminal justice safeguards.
Adversarial systems of justice place greater emphasis upon the right against self-
incrimination and the right to a jury trial. Within these systems, the plea bargain,
has taken root as an inquisitorial tactic and, challenges the very conceptualisation
of the appearance and behaviour of a trial. The presumption of innocence is being
eroded by the use of plea bargaining.John Langbein documents in “Torture and
plea bargaining” how the development of torture as a means by which to garner
confessions has paved the way for development of plea bargaining.5 Langbein further
argues that the flaws with plea bargaining are multiple. Stating that so long as we
have a mechanism by which one can obtain an omission of guilt the need to overcome
the presumption of innocence is redundant. Langbein is a strong supporter of the
sixth amendment right to a fair trial. Lippke, however, concedes that in some
circumstances the use of the plea bargaining mechanism does have benefits these are
that the trial procedure is more expedient and efficient.6 Lippke, unlike Langbein is
5
Langbein, “Torture and Plea Bargaining”.
6
R. L. Lippke. “The Ethics of Plea Bargaining”. In: ed. by R. L. Lippke. Oxford University Press,
2011. Chap. Introduction, pp. 1–9.
161
6.2 The Development of Plea Bargaining in the United Kingdom
of the opinion that there are elements of the plea bargain that are worth preserving.7
6.2 The Development of Plea Bargaining in the

United Kingdom
The U.K. plea bargaining rules and practise were set out in the rules of the Turner
case8 . This case established stringent rules stating that it was unacceptable that,
“The judge should . . . never indicate the sentence which he is minded
to impose. A statement that on a plea of guilty he would impose one
sentence, but that on a conviction following a plea of not guilty he would
impose a severer sentence is one which should never be made. This could
be taken to be undue pressure on the accused, thus depriving him of that
complete freedom of choice which is essential.”
There have been more recent calls to reform and relax plea bargaining rules in order
that they better reflect the reality of current times. Schedule 3 of the The Criminal
Justice Act 2003, implemented after the Turner decision, enables a defendant to
request an indication of the maximum sentence, if they were to plead guilty at that
stage. If an indication is given, it is binding on the court9 . In the case of Goodyear10 ,
the Court of Appeal set out additional guidelines for the issuing of an indication of
the likely sentence in a particular given case. The Goodyear court held that,
“A judge should never be invited to give an indication on the basis of
what would appear to be a ‘plea bargain’. He should not be asked or be-
come involved in discussions linking the acceptability to the prosecution
of a particular plea or bases of plea and the sentence which might be
imposed and he should not be asked to indicate levels of sentence which
he might have in mind depending on possible different pleas.” 11
The U.K. still maintains this false dichotomy that the indication of sentence has
nothing to do with the plea bargain which is difficult to maintain when a defendant
7
Lippke, “The Ethics of Plea Bargaining”.
8
(1970) 54 CR App R 352
9
D. Alge. “Negotiated Plea Agreements in Cases of Serious and Complex Fraud in England
and Wales: A New Conceptualisation of Plea Bargaining?” In: Web. J.C.L.I. 19 (2013). url:
http://webjcli.org/article/view/203.
10
[2005] EWCA Crim 888, [2006] 1 Cr App R (S) 6
11
[2005] EWCA Crim 888, [2006] 1 Cr App R (S) 6 [67]
162
formulates his decision to plead guilty or not on the likelihood of the sentence that
they are likely to receive as punishment.12 Plea bargaining does occur in the U.K.,
but is viewed with suspicion and is not popular. A similar view has been held by the
German academics and a model of plea bargaining implementation has been wrought
with difficulties.13 In addition to the Goodyear rules, the Sentencing Guidelines
Council Reduction in “Sentence for a Guilty Plea Guideline” (2004) establishes the
practice of the defendant receiving a one-third reduction in their overall sentence
if they plea guilty at the first available opportunity. Charge bargains, where the
prosecution drop a charge, are additionally used by the prosecution to ensure a
guilty plea14 . The U.K. has also developed guidelines for the further regulation of plea
bargaining in Serious Fraud Offences. The Attorney General has issued guidelines
stating that the process should only commence once the defendant is under caution,
with all discussions recorded and written. If an agreement is reached, this has to be
submitted to the court in writing. This agreement, however, is not binding upon the
court and can be overruled if deemed not appropriate for the situation particularly
that the punishment does not fit the crime15 .
These guidelines also establish the conduct of prosecutors during these sessions.
They must act, “openly, fairly and in the interests of justice”. Justice is the key
element to the plea being deemed by the court as being appropriate. The plea will
be accessed if it reflects the seriousness of the offences and if it allows the victims
and other actors in the criminal justice system to maintain faith in the outcome
of the criminal justice proceedings.16 It is imperative that the ultimate plea that is
reached does not make a mockery of the overall plea and it must not be illogical and
inappropriate to the severity and seriousness of the committed crime.
The practice of plea bargaining is not highly regarded within the U.K. legal systems
as it appears to dispense with the adversarial principles. It is strange that plea
bargaining, which originated within an adversarial system, is difficult to apply in an
inquisitorial system when it does not have any of the characteristics of an adversarial
practice.The two main aversions to plea bargaining are that it degrades the rights
of the defendants and that the practice allows defendants to evade stricter, harsher
12
Alge, “Negotiated Plea Agreements in Cases of Serious and Complex Fraud in England and
Wales: A New Conceptualisation of Plea Bargaining?”
13
R. E. Rauxloh. Plea Bargaining in National and International Law. Routledge, 2012.
14
15
Ibid.
16
Ibid.
163
verdicts and ultimately sentences.

The thesis of the paper is that the practice of plea bargaining erodes the principle
of equality of arms between the prosecution and defence. In doing so it works to
undermine the right to a fair trial of the defendant. The plea bargaining process can
indirectly punish the defendant for choosing to exercise their right to a trial. If the
defendant opts for a plea bargain, then the prosecution does not have its evidence
or case tested in open court against the defendant. The case against the defendant
does not have to be proven. In this situation, the defendant has to determine if the
plea offer is a rational choice17 .
Critics such as Langbein, Rauxloh and Bibas allege that the argument that the de-
fendant can advantageously use the plea bargain to avoid a stricter sentence can only
be valid if the defendant has the ability to make an informed choice. This include
the ability to based their decision upon the relevant legal issues, the consequences of
a higher sentence and so on. Unsurprisingly, there is a large discrepancy and scarcity
in Europe for the defendant to access basic legal counsel. Quality legal counsel is
even rarer and infrequent. This reinforces and strengthens the first plea bargaining
criticism. As such the defendant is placed at a considerable disadvantage regarding
fundamental rights and freedoms. Their principle of equality of arms is infringed.
This is an universal problem and is irrespective of the type of legal system in place.
A grave concern regarding this system is that innocent defendants plead guilty. Also,
a guilty defendant who chooses to not plead guilty faces the possibility that they
will be meted out a harsher sentence then one rightly due. This is because the court
could deem that its time has been wasted by exercising their right to a trial. One
possible result could be that defendants are punished for wanting an open trial.
Plea bargaining is hugely unpopular in the U.K. press and public as it is viewed as
being a loophole through which defendants can escape their due punishments.18
The UK Ministry of Justice, on the last day of its consultation on legal aid cuts
announced that financial incentives will be given to lawyers who encourage their
clients to plead guilty early. These financial incentives will affect both the magistrate
and crown court cases. The London Criminal Courts Solicitors Association (LCCSA)
has stated that there are some cases in the crown court where if the client pleads
17
18
Ibid.
164
guilty the lawyer will earn a 75% fee increase.19 In the U.K. lawyers are already
obligated to inform their clients of the benefits of an early guilty plea. These new
incentives and disincentives for a guilty plea and the trial are completely at odds with
the principles of justice.20 From the 2nd of December 2013 a 30% cut in very high
cost cases was implemented. These cost cuts were felt most by the lawyers whose
cases proceed to trial. A similar practice already exists in the U.S. A recent study
completed by the National Association of Criminal Defense Lawyers implied that
states which offer low compensation and pay caps for lawyers discourage experienced
lawyers from taking on court-appointed cases.21 In this way it encourages lawyers to
dispose of cases quickly often with guilty pleas. It was evident from the study that
the pay caps significantly limit the number of lawyers available and willing to take
on indigent defendants. In doing so the U.S. is creating a system whereby lawyers
are underpaid and causes them to lose money every single time they represent an
indigent defendant. This system, if left untouched, makes a mockery of the principle
that all have equal access to the law.
Alge outlines the distinctions between the defendant in a serious fraud case and
an individual charged with any other common criminal offence. There are certain
safeguards available to the serious fraud defendant arising from the regulation of
plea bargaining for this specific subsection of law. The most striking differences
highlighted is that the serious fraud defendant will most likely be in a better legal
position. The serious fraud defendant is more likely to have access to a team of
legal experts able to outline and highlight the legal and factual nuances of the case
resulting in the accused being able to make an informed decision. The defendant
charged with a common criminal offence, say burglary, has a basic limited options for
the the plea bargain: no prison time or a reduction in prison time. These defendants
do not have the access to the same level of legal advice (due to financial limitations)
to make an informed decision comparable to the defendant in the serious fraud case.
The U.K. model of plea bargaining has the defence and the prosecution entering into
discussions over the type of sentence that the defendant ought to receive if he or she
19
Lawyers to earn higher legal aid fees for early guilty please, Owen Bowcott, 1 Novem-
ber 2013, http://www.theguardian.com/law/2013/nov/01/lawyers-higher-legal-aid-fees-early-
guilty-plea (last accessed on 19 November 2013)
20
Lawyers to earn higher legal aid fees for early guilty please, Owen Bowcott, 1 Novem-
ber 2013, http://www.theguardian.com/law/2013/nov/01/lawyers-higher-legal-aid-fees-early-
guilty-plea (last accessed on 19 November 2013)
21
Part I - Rationing Justice: The Underfunding of Assigned Counsel Systems, National Association
of Criminal Defense Lawyers, March 2013
165
6.3 The United Kingdom’s Sentencing Guidelines.
pleads guilty to a lesser offence. The discussions are, in part, led by the strength of
the prosecution case and the quality of the evidence at their disposal. Prosecutors,
currently do not have much power and influence in the sentencing process. In the
case of R v Goodyear22 the Deputy Lord Chief Justice stated that a judge should
not be invited to give an indication of what would be, or would appear to be a ’plea
bargain’, stating that:
’[h]e should not be asked or become involved in discussions linking the
acceptability to the prosecution of a plea or basis of a plea, and the
sentence which may be imposed. He is not conducting nor involving
himself in any plea bargain.’
The U.K. as compared to the U.S., has less ability for formal plea bargaining reg-
ulation because of a lack of certainty of sentencing outcomes. The U.K. does have
the Sentencing Guidelines Council which also includes areas such as Guidelines on
Reduction in Sentence for a Guilty Plea:
’gauged on a sliding scale ranging from a recommended one-third (where
the guilty plea was entered at the first reasonable opportunity in rela-
tion to the offence for which the sentence is imposed), reducing to a
recommended one-quarter (where a trial date has been set) and to a rec-
ommended one-tenth (for a guilty plea entered at the ’door of the court’
or after the trial has begun).’
This is significantly different from the U.S. approach where the U.S. Sentencing
Guidelines are more formulaic and therefore negotiation is possible for a reduction.23
6.3 The United Kingdom’s Sentencing Guidelines.
Section 144 of the Criminal Justice Act 2003 does not confer a statutory right to a
discount. This remains a matter for the court’s discretion. The court, as in most of
the observed jurisdictions, still maintains the power to put aside the plea agreed upon
by the prosecution and the defence. The U.K. also has comprehensive guidelines
for the maximum reduction which can be offered to the defendant for a mandatory
minimum sentence offence under section 110 or section 111 of the Powers of Criminal
22
[2005] EWCA Crim 888
23
J. Lawrence et al. “Hardcore bargains: What could plea bargaining offer the UK in criminal
cartel cases?” In: Comp Law (2008), pp. 17–42, pp. 17–42.
166
6.4 The Development of Plea Bargaining in the United States of America
Courts (Sentencing) Act 2000. The discount given cannot exceed one fifth of the
prescribed minimum sentence: Criminal Justice Act 2003 section 144(2).24 These
Crown Prosecution Service Guidelines define how the prosecutor must act in a given
situation with regards to the plea of the defendant. An acceptance of a suitable plea
by the defence must be written down and the prosecutor is under no obligation to
accept it.
Additionally the prosecutor,
“should not lend itself to any agreement whereby a case is presented
to the sentencing judge on a misleading or untrue set of facts, or on a
basis that is detrimental to the victim’s interests. Prosecuting advocates
should not accept a basis of plea which is different from the case originally
advanced by the prosecution without considering the impact on the likely
sentence.”25
The prosecution is also under an obligation to prepare a written statement of the
plea and sentence to be provided to the court in order to assist the court with the
sentencing of the defendant.
The U.K. Court of Appeal, in the case of R v. Simon Roland Langridge26 , again
reiterated its disapproval of “closed” justice whereby the guilty plea was accepted by
the prosecution after the judge, in his chambers, gave his views about the strength
of the case.27
6.4 The Development of Plea Bargaining in the

United States of America
The U.S. model of plea bargaining is by far the most developed. There are various
elements which can be the subject of a “bargain” and the U.S. model can be divided
into three areas, concessions, contractual and consensual28 .
24
Crown Prosecution Service Sentencing Guidelines, http://www.cps.gov.uk/legal/s_to_u/sentencing_-
_general_principles/#a17 (accessed on the 23rd of July 2013)
25
26
[2010] EWCA Crim 2055
27
28
167
The U.S. Supreme Court set out in the case of Brady v. United States29 certain
safeguards for the defendant so as to protect against the previously mentioned in-
fringements of their fundamental rights. These safeguards include that the hearing
must take place in open court, and that the defendant must make the waiver of their
right to a trial “intelligently”. Additionally the court must be able to satisfy itself
that the plea was made by the defendant “voluntarily and knowingly”. There have
been a series of cases where the defendant has effectively been punished for wanting
to exercise their right to a jury trial.
Attorney Timothy Sandfeur argues, in defense of plea bargaining, that the defendant
has the right to make a contractual agreement with the State as in other free-trade
situations. Plea bargaining is more like forced association and as such once a person
is charged with a crime they cannot simply walk away from the State.30
The advent of plea bargaining becoming something which can be regulated by law
was first introduced in the case of Brady v. United States.31 Plea bargaining had
been previously been a frowned upon practice. The Supreme Court acknowledged
the existence of the plea bargain and its necessity in an overloaded system. It con-
sidered plea bargaining as being a tool which could serve to protect the court system
from complete collapse. The Supreme Court decision in Brady v United States con-
cerning plea bargaining was envisioned as a tool to be used when and where there
was evidence which pointed towards the overwhelming guilt of the defendant. It
was considered appropriate in cases of overwhelming guilt to offer the defendant the
opportunity to bargain which may afford them the some kind of a benefit. Plea
bargaining was only ever meant to be used as a tool by the prosecution in those
cases where the guilt of the defendant could be established with very convincing
evidence. It was in these types of cases that the plea bargain was seen as being a
way for the defendant to benefit from the opportunity to plea where the evidence
was overwhelming against him. The increased practice of plea bargaining resulted
in the need for establishing checks and balances to ensure that individuals would
not be coerced into making bargains. The court would have to investigate the case
to ensure that the guilty plea had not come from coercion, misrepresentation of
promises or bribes.32
29
397 U.S. 742 (1970)
30
T Lynch. “The Case Against Plea Bargaining”. In: Regulation 26 (2003), pp. 24–27.
31
397 U.S. 742 (1970)
32
L. E. Dervan and V. A. Edkins. “The Innocent Defendant’s Dilemma: An Innovative Empirical
Study of Plea Bargaining’s Innocence Project”. In: J. Crim. Law Criminol. 103.1 (2013), pp. 1–
168
Within the United States system plea bargaining has become an integrated part
of the process with more than 97% of convictions in the federal system resulting
from pleas of guilty rather than convictions by jury trial33 . The advent of sentencing
guidelines have further helped to clarify what sentence a defendant could reasonably
possibly expect but have also further exacerbated the problem of plea bargaining.
Sentencing guidelines enable the prosecutor to play with the sentencing differentials
which are, “the differences between the sentence a defendant faces if he or she pleads
guilty versus the sentence risked if he or she proceeds to trial and is convicted.”. The
danger with this situation is that all of the cards are in the hands of the prosecution.
At the heart of the debate over the appropriateness of the practice of plea bargain-
ing are the associated risks of bargaining away one’s justice. Additionally, it is the
innocent and not only the guilty who are being punished. There is an unhelpful
prevalent myth that innocent people will not accept a plea to plead guilty in return
for a lesser penalty. Hence the myth presumes that it is not possible to coerce some-
one who is innocent into pleading guilty of something which they are not. Much of
the assertions placed forward as evidence are based on assumptions of how innocent
people may behave in given circumstances. In a study conducted by the Innocence
project into the effects of plea bargaining upon the innocent defendant revealed that
more than half of the participants were willing to falsely admit something in order
to obtain some perceived benefit.34
In Brady, the Supreme Court made the observation that the assumption that the
defendant would have been able to make an informed plea of guilty because,
“pleas of guilty are voluntarily and intelligently made by competent de-
fendants with adequate legal counsel and that there is nothing to
question the accuracy and reliability of the defendants’ admissions that
they committed the crimes with which they are charged.35 ” (emphasis
own)
The Supreme Court has noted that a key element to to the acceptance of a plea
bargain being constitutional is the option as well as the possibility of the defendant
to accept or reject the offer.
48.
33
Dervan and Edkins, “The Innocent Defendant’s Dilemma: An Innovative Empirical Study of
Plea Bargaining’s Innocence Project”.
34
Ibid.
35
Ibid.
169
There have been several attempts at plotting the impact of plea bargains upon the
criminal justice system. There are issues with the accuracy of the studies when
determining what effect innocence has on choosing the plea bargain. Dervan and
Edkins approached this issue from a psychological background. They conducted a
study in which they had students signed up for a fictional problem-solving assess-
ment. Students were placed in a room with one other individual who unbeknown
to them was working for the study. The students were told that conferring was
forbidden on the second set of questions. The examiner left the room and the “con-
federate” (the insider) would ask the student for their answers. Those students who
offered assistance were placed into the guilty category and the others innocent. The
examiner returned after an allotted time, gathered the papers only to return stating
that the marked papers showed that the students had cheated.
The students were given an opportunity to confess their guilt. The consequences of
the admission of guilt would be no compensation for their participation. However, if
they did not plead guilty then they would have to appear before the Academic Re-
view Board which would then rule on the matter after hearing both sides arguments.
An unsuccessful appearance before the board would result in the the student losing
their study compensation; their faculty adviser would be informed of the event and
compulsory attendance to an ethics class. The percentage of innocent students who
accepted the plea offer was 56.4% (that is 22 students) 43.6% rejected the offer.
Whereas the percentage of guilty students who accepted was 89.2% and those that
rejected was 10.8%.36 These results confirm what is already known that innocents
also confess to the misconduct. Guilty defendants are still more likely to plead guilty
than innocent ones. What is most striking is the fact that the innocent individu-
als in this study were willing to admit guilt (falsely) irrespective of the leniency or
harshness of the sentence to be imposed. What this shows us is that there are indi-
viduals who will plead guilt simply because they want the whole process over and
done with. As such defendants may be falsely condemning themselves on matters
which have nothing to do with their factual guilt.37
The study revealed that the commonly held myth of only the guilty plead is not
accurate.
This study shows that the Brady decision has far overstretched its remit. The use
36
37
Ibid.
170
of plea bargaining is now being employed in scenarios where the evidence of guilt
against the defendant is not overwhelming and compelling. This study established
which was already well known, that guilty defendants are still more likely to plead
guilty then innocent defendants. The results also showed that innocent defendants
were still willing to trade their freedom for less harsh or more lenient sentencing.38
It was noticeable from the outcomes of the study that the innocent defendants
behaviour was one of high risk-aversion. The presentation of the statistically nature
of the evidence resulted in the defendant choosing that route which gave the lowest
personal penalty. This is an indication that the defendant is more vulnerable at the
pre-trial stage of the justice process, even more than the police interrogation phase.
The Supreme Court also had to consider the case of North Carolina v. Alford39 in
the same year as the Brady case. Alford was advised by his counsel to plead guilty
to second-degree murder after the lawyer had questioned the other witnesses and
concluded that there was a strong indication of guilt. As a result of his counsel’s
legal advice, Alford pleaded guilty but throughout the trial protested his innocence.
The Supreme Court stated that a defendant could plead guilty at the same time as
maintaining their innocence.
The legal conundrum presented by the Alford case, of one pleading guilt but still
maintaining their innocence was revisted in the case of the ’West Memphis Three’.
This case concerned the murder of three eight-year-old boys known as the “West
Memphis Three” in 1993. Three teenagers were convicted the murders and two
received life sentences and the other the death penalty. They maintained their
innocence throughout all of the proceedings. DNA evidence was found which linked
one of the murdered boys stepfathers to the murders in 2007. After this revelation,
a witnesses came forward claiming that they had seen the stepfather with the boys
shortly before their murders4041 . It was deemed that there was indeed sufficient
evidence to call a retrial in 2011. The prosecution determined that there was no
longer enough evidence to convict the three men of the murders for which they had
originally been incarcerated. In order to be released, the prosecution offered them
a deal they would have to plead guilty to the murders and they would be released
38
39
400 U.S. 25 (1970)
40
41
171
immediately. They had all maintained their innocence for so long but they relented
as one of the three was facing the death penalty.42
The Supreme Court recanted on its ruling that there was not overwhelming evidence
of guilt in the Alford case and hence a plea bargain should be only used in those cases
where there is overwhelming evidence of guilt. Since Brady v. United States, the
Supreme Court has not been consistent with its own plea bargaining rulings. The
“West Memphis Three” case clearly shows that the defendants were indeed enticed
and encouraged to plead guilty so as to walk free.The Brady decision supposedly
introduced a “safety valve” whereby the Supreme Court has at its disposal the ability
to, “reevaluate the constitutionality of bargained justice”. This is when and where
it deems that the plea bargaining process has overstepped being persuasive into
the realm of being coercive and works to entrap defendants. This safety valve is
quite clearly broken as it would appear that far more innocent defendants are being
captured by the lure as well as the temptation of the plea bargain.It is time to accept
that the illusion that guilty pleas are the result of a defendant accepting their guilt
and are being made freely with “intelligent” choice in the absence of coercion and
pressure by the prosecution is a myth43 . The illusion that a defendant, guilty or not,
is truly free to choose or reject an offer thereby removes the pressure to condemn
themselves in the form of a guilty plea is blatantly not true as we can see evidenced
by the case of the “West Memphis Three”.44
There have been a series of U.S based campaigns to coincide with the 50th year
anniversary of the Gideon v Wainwright case. These campaigns have sought to
highlight the harsh reality that denying the poor adequate legal representation is a
strategy for prosecutors in winning cases despite the principle of legal representation
being a constitutional right45 . In the U.S. system, the prosecutor is the major driving
force in the trial , particularly in plea bargaining situations. The legal environment
follows an inquisitorial model, like the French system, within an adversarial system
which prides itself on two equal but opposing counsels.
The inescapable fact of the provision of legal counsel is that the right to counsel and
42
43
44
Ibid.
45
S. B. Bright and S. M. Sanneh. “Fifty Years of Defiance and Resistance after Gideon v Wain-
wright”. In: Yale L. J. 122 (2013), pp. 1–20.
172
access to justice are unfortunately no longer synonymous. “You are only entitled to
as much legal defence as you can afford” is the message that is being strongly sent
to the indigent defendant. A price has effectively been put on justice.
An application for bail, pending the trial date, can be easily made for defendant, who
can afford a lawyer, who petitions and argues om their behalf. If a defendant can
not afford a lawyer, they are more likely than not to be remain in pre-trial custody
possibly until the date of the trial itself. It is during this time period that the
counsel might consider trying to engage in a plea bargain. If an indigent defendant
does not have at their disposal an appropriate counsel, the issue of effective advice
and counsel comes into issue. This is an area which the ECtHR has stated quite
clearly compromises the overall fairness of the trial. The defendant may also not
have access to the same plea bargain benefits available to those released on bail.
The lack of effective representation is most strongly felt at the lower courts levels
where there is a tendency to encourage a plea, in order to avoid a lengthy trial.
The majority of cases (90%) within U. S. and the U. K. are dealt with at the low
level courts. In the U. K. an early guilty plea submission is encouraged by sentence
reduction by up to one third. In both jurisdictions, the right to a lawyer as well
as the right to a trial are being denied. Both systems which pride themselves on
their adversarial heritage have incorporated an inherent inquisitorial characteristic
dispelling the myth that there is no way to cross the boundaries of the two systems.
The right to representation is normally deemed as being imperative in those cir-
cumstances where the loss of liberty is at the highest. The far reaching effects and
impact of the Gideon v Wainwright case have subsequently been eroded by decisions
and views which presume that counsel is fully aware and understands the implica-
tions of its actions. This presumption as well as deference to the counsel’s judgment
is a position which is held by the ECtHR where they tend to err on the side of the
principle of the margin of appreciation for the member states to determine what
they deem to be appropriate conduct of counsel .46
The dissenting judge in the case of Stickland47 , stated that this presumption is placed
upon the defendant to prove when there has been a deficient performance by their
counsel. The defendant should also not be required to prove that that performance
was (also) prejudicial to them when arguing about the deficient performance of their
46
Bright and Sanneh, “Fifty Years of Defiance and Resistance after Gideon v Wainwright”, p 17.
47
Stickland v Washington 466 U.S. 668 (1984)
173
counsel.
“In this system, poverty, not justice, dictates outcomes. Inexcusable in-
justices occur every day in the criminal courts. As former federal judge
and FBI director William S. Sessions has observed, the widespread re-
sistance to Gideon and its progeny “should be a source of great embar-
rassment” to the judiciary, the bar and public officials because it has
“created one of our legal system’s most shameful deficiencies, greatly
exacerbated by the Court’s unrealistic and damaging 1984 decision in
Strickland v. Washington.”48
Trials are unfortunately expensive but so are re-trials, repeated appeal processes and
possible compensation. Maintaining individuals in prison is costly but keeping non-
guilty people locked up for offenses or the lack of viable incarceration alternatives
transfers extra cost to the state.
In 2004, the American Bar Association revealed that thousands of defendants pass
through the criminal justice system without any contact with a legal professional.
49
This was further reiterated by the Constitution Project in 2009 which found
that the situation had not changed in 5 years.50 The same issues which Gideon
sought to relieve are being faced in 2013. Gideon’s argument was that without
equal representation that there is no way that one can talk about the existence of
the right to a fair trial. This very argument is at the central of the equality of arms
concept.
The current global financial crisis also does not help the situation. This phenomenon
has resulted in the reduction of the already limited funding available for indigent
defendants counsel services.
There has been a movement to recognise, once counsel has been appointed, there is
an overriding duty for that counsel to be effective and that the quality of counsel
should not affect the overall fairness of the trial. This has been noted in the plea
bargaining cases of Missouri v Frye51 and Lafler v Cooper 52 . This position is the
48
Bright and Sanneh, “Fifty Years of Defiance and Resistance after Gideon v Wainwright”, p 17.
49
“Half a century after landmark ruling, we need to ensure counsel for all.” by Brian
Gilmore, ADN.com, March 13, 2013, www.and.com/2013/03/13/2823264/half-a-century-after-
landmark.html (accessed on the 26th of March 2013)
50
“Half a century after landmark ruling, we need to ensure counsel for all.” by Brian
Gilmore, ADN.com, MArch 13, 2013, www.and.com/2013/03/13/2823264/half-a-century-after-
landmark.html (accessed on the 26th of March 2013)
51
No. 10-444 (U.S. Mar. 21, 2012)
52
No. 10-209 (U.S. Mar. 21, 2012)
174
same one that the ECtHR has adopted with regards to the provision of a legal
defence for the defendant as well as the right to a fair trial. This is to do, in some
part, with the margin of appreciation. The U.S. has adopted what is called “the
critical stage doctrine” which reasserts the fact that the Sixth Amendment right
applies to all “critical stages” of the trial process including those stages which are
“critical” to ensuring that a trial is fair. For example, a lawyer should be provided at
the interview stage and also in plea bargaining arrangements. Interviews and plea
bargaining happen before the actual trial but as they have an overriding impact
upon the overall fairness of the trial it was considered to be naive to completely
ignore their impact. This is similar to the ECtHR position recognised in the case of
Salduz v Turkey.
The result of Gideon v Wainwright case ensured that legal counsel should be pro-
vided and it was a Sixth Amendment right for plea bargaining cases. This situation
ensured that legal counsel was imperative to the pretrial negotiation stage. It was
the subsequent cases of Frye and Lafler that cemented that influence that effective
counsel will have upon the plea bargain. It has since been determined that the
provision of legal counsel is critical to the decision-making process concerning the
plea bargain. The Sixth Amendment has been found to be applicable to all of the
critical stages of the trial53 .
6.4.1 Strickland v Washington (466 U.S. 668 (1984))
This case concerned an individual who pleaded guilty to three counts of capital
murder charges against his defense counsel advice. He admitted responsibility for
the crimes and emphasised that he was stressed at the time of the incidents.He
had committed the three burglaries as he was struggling to provide for his family.
The appointed defense counsel was experienced and tactically chose, not to perform
certain background checks on his client. As it was deemed that these background
checks would be more detrimental to his client’s case. The defendant was sentenced
to death for his crimes by the Trial judges and this sentence was upheld by both
the Florida Supreme Court, District Court and the Supreme Court. The court’s
reasoning was there had been no resultant prejudice to the defendant’s sentence
resulting from the defense counsel’s error of judgment.
The two-stage test established by the case was the following:
53
Montejo v. Louisiana, 556 U. S. 778, 786
175
1. The defendant must show that the counsel’s performance fell below an objec-
tive standard of reasonableness (“deficient performance”)
and
2. there is a reasonable probability that the result of the proceeding would have
been different if the counsel performed adequately (“prejudice”).
“the benchmark for judging any claim of ineffectiveness must be whether

counsel’s conduct so undermined the proper functioning of the adversar-
ial process that the trial cannot be relied on as having produced a just
result.”54
“The standards do not establish mechanical rules; the ultimate focus of
inquiry must be on the fundamental fairness of the proceeding whose
result is being challenged. A court need not first determine whether
counsel’s performance was deficient before examining the prejudice suf-
fered by the defendant as a result of the alleged deficiencies.”55
The trial court found that the aggravating circumstances of the case were so over-
whelming that if the counsel had followed up on all of the leads, it would not have
made any significant or substantial difference to the case. The defendant’s central
argument was that he had received ineffective counsel as his defense counsel had not
exhausted all lines of investigation. The Court held that even if the defense counsel
does not conduct an in depth investigation into all lines of inquiry, their counsel will
not necessarily be deemed as being ineffective. This arises because defense counsel
have their own styles and strategic methods for the representation of their clients.
Any material or avenue omitted from a line of defence will not necessarily be deemed
as amounting to ineffective legal counsel which is contrary to the Sixth Amendment
constitutional right as long as the defense counsel’s assumptions as well as reading
of the case is considered to be reasonable.
The U.S. Supreme Court focused on the meaning and purpose of the Sixth Amend-
ment right to effective legal counsel. It stated that any error made by the legal
counsel, so long as it had no overall impact upon the fairness as well as the overall
outcome of the judgment of the criminal proceedings would not be deemed as having
a detrimental impact upon the defendant. The Court also stated that the complete
54
at 466 U. S. 684-687
55
at 466 U. S. 696-698.
176
denial of counsel would amount to an infringement but in this case, the defendant
had been awarded a very experienced defense counsel. The Court stated that the
defendant would have to show that,
“.... that particular errors of counsel were unreasonable, therefore, the
defendant must show that they actually had an adverse effect on the
defense.”
The Court strongly emphasised that even though they were laying down standards
for determining when counsel has been ineffective that these standards were not
mechanical in their application as they should be considered to be principles which
guide the whole trial process as the,
“ultimate focus of inquiry must be on the fundamental fairness of the
proceeding whose result is being challenged.”56
As a result, the Court should decide in each case whether the breakdown of proce-
dural observance has resulted in unjust result and an unfair proceeding.
6.4.2 Hill v Lockhart (474 U.S. 52 (1985))
The petitioner pleaded guilty to one count of murder and to one count of theft.
A plea bargain was agreed upon in which the petitioner would serve his sentences
running concurrently. After two years of imprisonment, the petitioner filed a federal
habeas corpus petition stating that his guilty plea was involuntary due to ineffec-
tive legal counsel that he had received. The petitioner alleged that his lawyer had
misinformed him that he would be eligible for parole after only serving one-third
of his sentence. The petitioner, however, had already committed a felony offence
in Florida state and was counted in Arkansas state as being a “second offender”
and as such would be required to serve one-half of his sentence before eligibility for
parole consideration. The petitioner requested that the state reduce his sentence to
a term which would result in eligibility for parole in the time frame concurrent with
his original expectations. The District Court dismissed the petitioner’s application
without a hearing, stating that there was no requirement that the petitioner be
informed of his parole eligibility prior to him pleading guilty in Arkansas or federal
law. The rationale of the court was that the information regarding parole was not
56
at 466 U. S. 697
177
of such a high consequence that if there were any misinformation regarding it would
render the plea involuntary.
The District Court stated that,
“even if an attorney’s advice concerning such eligibility is not wholly
accurate, such advice does not render that attorney’s performance con-
stitutionally inadequate.”57
The Eighth Circuit Appeals Court made an interesting distinction in law between
what the law will consider to be a “collateral consequence” and “direct consequence”.
The Court stated that the issue of parole eligibility was a “collateral consequence”
and a matter which did not impact upon the validity of the guilty plea of the
petitioner. A dissenting judgment stated that the lawyer’s advice should be re-
examined to determine whether the lawyer failed to inform the petitioner of the
applicable law which would amount to ineffective assistance of counsel. If it did,
then the guilty plea should be overturned.This was not the majority view.
The U.S. Supreme Court decided the case with Justice Rehnquist delivered the
final opinion. The Court reiterated that the test for determining the validity of
guilty pleas was that the plea had to be made both voluntarily and intelligently
by the petitioner who came to that conclusion, after looking at all of the courses
of actions available to them. In the case of Hill, the petitioner was not alleging
that he accepted the plea bargain because he was not supplied with the appropriate
parole eligibility information. The petitioner rather alleged that it was due to the
ineffective assistance of counsel that the petitioner’s plea was involuntary, due to
the fact that the information that he had received from his counsel was wrong.
The question for the Court was whether the petitioner had received legal advice
which, “was within the range of competence demanded of attorneys in criminal
cases.”58 The Court upheld its two-stage test, established in the case of Strickland,
stating that the same principles were applicable in this case. This showed that some
“prejudice” had been suffered by the petitioner as a result of the alleged ineffective
legal counsel. With regards to its prejudice requirement the court stated that,
“[a]n error by counsel, even if professionally unreasonable, does not war-
rant setting aside the judgment of a criminal proceeding if the error had
no effect on the judgment.”59
57
Page 474 U.S. 55
58
Page 474 U. S. 56
59
Strickland v Washington, 466 U.S. 668 (1984), at 466 U. S. 691.
178
The Court stated that the Government is not responsible for counsel quality re-
ceived by a defendant as the U.S. Constitution does not stipulate that the State
should provide the petitioner with parole information in order to make their plea of
guilty voluntary. The Court recognised that attorneys may make mistakes but the
onus was upon the defendant to show that the errors of the counsel did indeed have
an unreasonable and particularly adverse impact upon the defense. Ultimately, the
Court affirmed the decision of the District Court on the basis that the petitioner
had failed to satisfy the ’prejudice’ test of Strickland. The petitioner had not es-
tablished that he would have pleaded differently had he know the parole eligibility
date. The petitioner had not alleged any special circumstances that supported the
the conclusion that he had placed specific reliance upon his parole eligibility date
and would have pleaded guilty. The petitioner failed to assert sufficient facts to
substantiate the claim that but for the omissions of the legal counsel he received he
would not have pleaded guilty and would have insisted on going to trial.60
This case also established that the Strickland test for ineffective assistance of counsel
applies to plea bargains.
6.4.3 Padilla v Kentucky (No. 08-651 (U.S. Mar. 31, 2010)
The case of Padilla concerned ineffective legal assistance given concerning the ac-
ceptance of a plea bargain. The legal counsel had failed to correctly inform Padilla
about the risks of deportation if found guilty. The counsel was of the opinion that
there was a minimal or no deportation risk as Padilla had lived in the United States
of America for 40 years. However, the severity of the charges against Padilla for drug
related offences meant that a guilty verdict would result in deportation. The Ken-
tucky Supreme Court had held that the Sixth Amendment requirement of effective
assistance of counsel does not protect against those issues which are “collateral” in
nature. They also deemed Padilla’s potential deportation to be a “collateral” issue.
The U.S. Supreme Court held that the Kentucky Supreme Court erred when it made
a distinction between direct and collateral consequences when determining when
legal counsel should be provided as the U.S. Supreme Court had never ever made
such a distinction. The U.S. Supreme Court held that Padilla had sufficiently shown
that his counsel’s advice was deficient, satisfying the first condition of the Strickland
60
Hill v Lockhart (page 474) U.S. 60
179
test. The second element to be satisfied is that if it had not been for the deficient
and unreliable advice then the defendant, would have behaved differently.If this can
be shown then the Kentucky Court would have to determine upon this question.In
their wisdom, they stated
“This decision will not open the floodgates to challenges of convictions
obtained through plea bargains.”61
It was only in the companion cases of Lafler and Frye that the floodgates were
opened much to the disgust of Justice Scalia. Once again, it is shown that the key
issue of access to justice for all is not at the heart of the judiciary but the public
appearance of crime control being maintained. This is a modern slavery, where the
defendant is bound by the chains of inadequate and inferior advice and looses a
freedom with no way of reclaiming a fundamental right.
6.4.4 Missouri v Frye (No. 10-444 (U.S. Mar. 21, 2012))
This case can be distinguished from that of Hill and Padilla, as Fyre was not informed
of the prosecutor’s plea bargain. Frye appealed against his conviction and “brought
an ineffective assistance of counsel claim on the basis that his trial counsel’s failure
to convey the plea offers to him was a violation of his Sixth Amendment right to
counsel.”
The court applied the two stage Strickland v Washington test and investigated
whether lapsed plea offers are part of the the Strickland requirement of deficient
performance. It held in this case that:
“[t]he reality is that plea bargains have become so central to the admin-
istration of the criminal justice system that defense counsel have respon-
sibilities in the plea bargain process, responsibilities that must be met
to render the adequate assistance of counsel that the Sixth Amendment
requires in the criminal process at critical stages.”62
The Fyre case resulted in the court set out the following test63 for a defendant who
wants to show or is asserting that there has been ineffective assistance of counsel
from a lapsed or rejected plea offer. They must show the following:
61
Padilla v Kentucky, 559 U.S. 2010
62
Durocher, “Are We Closer to Fulfilling Gideon’s Promise? The Effects of the Supreme Court’s
“Right-to-Counsel Term””.
63
Ibid.
180
1. a reasonable probability they would have accepted the earlier plea offer had
they been afforded effective assistance of counsel;
2. a reasonable probability the plea would have been entered without the pros-
ecution cancelling it or the trial court refusing to accept it if they had the
authority to exercise that discretion under state law;
and
3. a reasonable probability that the end result of the criminal process would have
been more favourable by reason of a plea to a lesser charge or a sentence of
less prison time.64
The U.S. Supreme Court upheld the Missouri court decision that the counsel’s fail-
ure, to inform Frye of the plea bargain before it expired, fell below the objective
reasonableness standard. The Missouri Court failed to show that the possibility of
the prosecution acceptance of the plea bargain and the adherence of the Court to
the deal would have resulted in Frye’s acceptance of the offer. This was especially
pertinent as one week before the trial, Frye was found to be driving without a li-
cence and this would have meant that this violation would have been taken into
consideration with all of his offences. The U.S. Supreme Court therefore postulated
that the plea bargain would have been rejected by both the prosecution and the
court. As such, the Supreme Court stated that this was a matter that the Missouri
appellate court would have to initially rule upon.
“This application of Strickland to uncommunicated, lapsed pleas does
not alter Hill’s standard, which requires a defendant complaining that
ineffective assistance led him to accept a plea offer instead of going to
trial to show “a reasonable probability that, but for counsel’s errors,
he would not have pleaded guilty and would have insisted on going to
trial.”65
Great scope as well as discretion is given, to how a defense lawyer can prepare
their case and strategy. This is comparable to Europe and the ECtHR. It is rare
that the Courts will directly chastise the practice of a counsel.The U.S. Supreme
Court recognised that plea bargaining has become a central facet of the American
criminal system and it would be remiss if a defence attorney did not consider and
64
“Right-to-Counsel Term””.
65
566 U. S. (2012)
181
approach their client with the terms of any plea bargain. Based upon this reasoning,
the judges determined that a defence attorney would not be working to the best
of their professional capabilities and would not be in keeping with the spirit of
the Sixth Amendment requirement of effective counsel. In order to ensure that
the defendant is informed of the plea bargain, the American Bar Association has
established standards which both the prosecution and the defence should follow.
These standards require the registration of the presence, or lack, of a plea bargain
agreement before any plea is entered. This ensures that the defendant is made aware
of the fact before any proceedings have commence.
“The American Bar Association recommends defense counsel “promptly
communicate and explain to the defendant all plea offers made by the
prosecuting attorney,” ABA Standards for Criminal Justice, Pleas of
Guilty 14–3.2(a) (3d ed. 1999), and this standard has been adopted by
numerous state and federal courts over the last 30 years.”
The dissenting judgment of Justice Scalia, as is mentioned in Lafler focused on
the fairness of the trial. In this particular case, he asserted that the defendant
recognised his guilt as well as the fairness of the proceedings. The central point of
Justice Scalia’s dissenting judgment was that,
“Counsel’s mistake did not deprive Frye of any substantive or procedural
right; only of the opportunity to accept a plea bargain to which he had
no entitlement in the first place.”
Justice Scalia maintains that his colleagues have misapplied the rule in Strickland
as the matter is about whether the ineffective legal assistance received has deprived
the defendant of the right to a fair trial as well as some procedural and substantive
duties. The Justice takes issues with the point that defence counsel have their own
personal style when it comes to plea bargaining and that it will not do to simply
say that, “it will not be so clear that counsel’s plea-bargaining skills, which must
now meet a constitutional minimum, are adequate.” Additionally,
“If an attorney’s “personal style” is to establish a reputation as a hard
bargainer by, for example, advising clients to proceed to trial rather than
accept anything but the most favorable plea offers? It seems inconceiv-
able that a lawyer could compromise his client’s constitutional rights
so that he can secure better deals for other clients in the future; does
a hard-bargaining “personal style” now violate the Sixth Amendment?
182
The Court ignores such difficulties, however, since “[t]his case presents
neither the necessity nor the occasion to define the duties of defense
counsel in those respects.” Ante, at 8. Perhaps not. But it does present
the necessity of confronting the serious difficulties that will be created
by constitutionalization of the plea-bargaining process. It will not do
simply to announce that they will be solved in the sweet by-and-by.”
Justice Scalia agrees as well as accepts that the counsel’s advice was inadequate but
he does not agree with the Court’s new interpretation of prejudice. Justice Scalia
states that it is unwise to constitutionalise the practice of plea bargaining because he
rather critically states that it would involve the very unwise practice of looking into
the “crystal ball” of the past so as to postulate the long chain of possible acceptance
events which would be needed from the defendant, Missouri state prosecution and
Judge, with each link affecting the next decision.Also, would the appeal court process
have accepted a withdrawal of the plea bargain by the prosecution. Justice Scalia
asserts the fact that Frye was arrested one week before the trial for driving without
a licence as evidence that it was probably very highly likely that the prosecution
would have withdrawn their plea bargain and that the appellate court would have
accepted this withdrawal. Justice Scalia predicted that after the handing down of
this decision of the constitutionalisation of plea bargaining that there would be a
whole host of new cases which would be addressing this topic.
The reasoning for his dissent was that it was inconsistent with the Sixth Amendment
which assures the guarantee of the right to a fair trial. This does not apply to a
plea bargaining process and also that the decision was inconsistent with the previous
precedent’s of the court concerning this matter.
“Whatever the “boundaries” ultimately devised (if that were possible), a
vast amount of discretion will still remain, and it is extraordinary to make
a defendant’s constitutional rights depend upon a series of retrospective
mind-readings as to how that discretion, in prosecutors and trial judges,
would have been exercised.
What is more worrying about this judgment is that Justice Scalia seems to be to be
at odds with the general principle of a plea bargain as being promoted as part of the
US justice system. His attitude and mannerism suggest that he sees plea bargaining
as a slight addition not a core part of the process.
183
6.4.5 Lafler v Cooper (No. 10-209 (U.S. Mar. 21, 2012))
The cases of Lafler and Frye are often referred to as companion cases as they were
both handed down on the same day by the court as well addressing very similar
issues.This case was especially noteworthy because it enabled the U.S. Supreme
Court to review as well as declare a new doctrine on habeas review.
The Court found that Cooper’s lawyer had been deficient under the first prong of
the Strickland test. This is a hard test to satisfy as there is a heavy emphasis upon
the laywer’s strategic decisions and tactics. The Lafler case decision,
“appears to have loosened the “contrary to” standard a notch for future
cases, encouraging petitioners to argue that the state court never applied
the correct federal precedent (even when that precedent is cited or de-
scribed), instead of arguing than that the court’s application of federal
law was unreasonable.”66
The dissenting judges stated that the Strickland test was not satisfied as Cooper
had ’knowingly’ and ’voluntarily’ rejected two plea offers and chosen to go to trial.
This was the reason for the rejection of the appeal by the Michigan Court of Appeals
The question before the U.S. Supreme Court was whether the advice of the counsel
had fallen below the standard of acceptability as set out in the Sixth and Fourteenth
Amendments. The U.S. Supreme Court, applying Stickland, found that there had
been a deficient legal performance as the legal counsel had informed the respondent
of “an incorrect legal rule”.
The Courts stated that,
“Defendants have a Sixth Amendment right to counsel, a right that
extends to the plea-bargaining process. During plea negotiations defen-
dants are “entitled to the effective assistance of competent counsel.”
The Court agreed that the respondent’s counsel was deficient when the respondent
was advised to reject the plea bargain. The point of contention before the Court
was how to apply the Strickland test of prejudice where a rejection of a guilty plea
offer is the result of ineffective legal assistance. The court was divided 5-4. In order
to satisfy the Strickland prejudice test, the respondent must show the following,
“that there is a reasonable probability that, but for counsel’s unprofes-
sional errors, the result of the proceedings would have been different.”
66
N. J. King. “Lafler v. Cooper and AEDPA”. In: Yale L. J. Online 29 (2012), p. 122.
184
This case is different from Hill as the ineffective legal assistance resulted in the
rejection of a plea bargain. In determining what the scope of the application of the
Sixth Amendment is,
“[t]he benchmark for judging any claim of ineffectiveness must be whether
counsel’s conduct so undermined the proper functioning of the adversar-
ial process that the trial cannot be relied on as having produced a just
result.”
The question before the court relates to the pre-trial processes. The Court found
that the same standards of fairness and reliability apply to the plea bargaining stage
as well. The intended essence of the habeas corpus application is to protect against
those incidents where the state criminal justice system does not behave in the way
that it should.67
The Court found that the respondent had shown that but for the deficient per-
formance of the legal counsel he would have pleaded guilty, and received a lesser
sentence. The solution in this situation was found to be that the State should re-
offer the plea agreement. If the defendant accepted it, the discretion of the Court
would determine whether to vacate the convictions and re-sentence according to the
terms of the bargain or to leave the original trial conviction and sentence in tact
and undisturbed.
Justice Scalia issued a rather scathing dissenting opinion stating that the Supreme
Court had opened up plea bargaining as a whole new area of constitutional law.
Justice Scalia raises the interesting question of whether it is constitutionally accept-
able to make no plea offer at all, even though its case is weak - thereby excluding the
defendant from the “criminal justice system”? He cynically states that the Court
has erred in considering the respondent’s claim because ,
“The Court nonetheless concludes that Cooper is entitled to some sort
of habeas corpus relief (perhaps) because his attorney’s allegedly incom-
petent advice regarding a plea offer caused him to receive a full and fair
trial.”
In his dissenting opinion, Justice Scalia sets out that the the right to effective legal
counsel originates from of United States v Wade where it was held that,
“any stage of the prosecution formal or informal, in court or out, where
67
King, “Lafler v. Cooper and AEDPA”.
185
counsel’s absence might derogate from the accused’s right to a fair trial.”68
The opinions of the dissenting judges in Cooper was that he had received a fair and
just trial. He was accordingly convicted and sentenced freely so accordingly there
had been no constitutional infringements in their opinions. They held the view that
this decision worked to open up an unsafe interpretation of the effective assistance
of counsel clause found in the Sixth Amendment and as such, the verdict which was
reached in the case of Cooper was an unsound constitutional interpretation of the
principle.
Another point of contention between the majority ruling and the dissenting judges
was the appropriate remedy which should be offered in a case where it is deemed
a defendant, with ineffective counsel, went to trial and received a longer sentence
than if the plea bargain was accepted. The dissenting judges were of the view that
if the trial was fair and just, then the results should not be changed as it could make
a complete mockery of the justice system.The majority judges, however stated that
the case should be sent back to the trial judges to rule, within their discretion, as to
whether they would apply the plea bargain terms or to stick with the original trial
result.
The positive attribute about the decisions in both the Lafler and Frye cases is that
it establishes an onus upon the defence lawyer to take serious consideration of and
diligence when dealing with plea bargains being offered by the prosecution in a
particular case.
The significant legal outcome from both the Lafler and Frye cases is that the criminal
courts have openly stated that plea bargaining is part of the integrated process of
U.S. criminal justice system. The courts call for its official recognition so that it can
be regulated , assured and the quality of the counsel representation monitored.
The legacy of Strickland remains despite the progress that was made in both the
Lafler and Frye cases. The courts still give a wide deference to the counsel and find
it hard to assert that the counsel had acted in a completely unreasonable way. As
such the Strickland test will only allow for the kind of remedy that both Lafler and
Frye provide if it is completely egregious behaviour.69
68
United States v. Wade, 388 U. S. 218, 226 (1967)
69
“Right-to-Counsel Term””, p. 7.
186
6.4.6 Burt v Titlow (12-414 U.S. 6th Cir. OT 2013)
Vonlee Nicole Titlow, a transgender individual, helped her aunt Billie Rogers murder
her Uncle. In exchange for Titlow’s guilty plea bargain she would see her sentence
to manslaughter with a corresponding imprisonment between 7-15 years. She would
have to submit to a lie detector test; give evidence against Billie Rogers and and
not challenge the prosecutor’s sentencing range on appeal 70 . The Court accepted
the plea agreement.
Whilst Titlow was in jail in between hearings, she spoke with the sheriff’s deputy
who advised her that she should not plead guilty if she believed that she was innocent
and then referred her to another lawyer. Titlow subsequently discharged her initial
lawyer and took on Frederick Toca. At the hearing, Titlow confirmed that she was
freely and voluntarily withdrawing her plea; that she understood the consequence of
withdrawing her plea would mean the reinstatement of the first-degree murder charge
and she would be subjected to the possibility, if found guilty, of life imprisonment.
Titlow was sentenced to 20-40 years in prison following trial.
Her case raises several ineffective assistance of counsel claims and prosecutorial mis-
conduct claims. The United States Court of Appeals for the Sixth Circuit held that
the Michigan Court of Appeals had erred when they had rejected Titlow’s claim for
ineffective assistance of counsel with relation to advice received concerning the plea
bargain.
The Sixth Circuit appeals Court also deemed that it was reasonable to conclude that
the second lawyer was at fault. They had failed to investigate adequately the case
before advising her to withdraw the plea and this advice resulted in a longer sentence
instead of the 7-15 years imprisonment agreed in the plea bargain 71 . Toca’s failures
to obtain the relevant case information constituted a sizeable impact upon her plea
negotiations and these research omissions did not come from a safe professional
judgment or a strategic choice. The Appeals Court also took into consideration
that Titlow did originally intend to accept the plea. The conclusion of the Appeal
Court was that Titlo’s Sixth Amendment rights were violated by receiving Toca’s
ineffective legal counsel. The Appeals Court ultimately held that the district court’s
judgment should be reversed and they should conditionally grant the petition for a
writ of habeas corpus,giving the State 90 days to re-offer Titlow the original plea
70
http://lawyersusaonline.com/wp-files/pdfs-5/burt-v-titlow.pdf
71
http://lawyersusaonline.com/wp-files/pdfs-5/burt-v-titlow.pdf
187
offer or release her.

This case shows the predicament which Justice Scalia warned would occur in the
Frye and Lafler dissenting judgments. The case was decided by the Supreme Court
on November 5 2013. This case raised three general plea bargaining related issues.
The first was whether the Sixth Circuit failed to give appropriate deference to a
Michigan state court under Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA) in holding that defense counsel was constitutionally ineffective for allowing
the respondent to maintain his claim of innocence; a related point was whether a
convicted defendant’s subjective testimony that he would have accepted a plea but
for ineffective assistance, is, standing alone, sufficient to demonstrate a reasonable
probability that defendant would have accepted the plea. The Court then considered
the issue whether Lafler v. Cooper always requires a state trial court to re sentence
a defendant who shows a reasonable probability that he would have accepted a plea
offer but for ineffective assistance, and to do so in such a way as to “remedy” the
violation of the defendant’s constitutional right.”72
The central issue for the U.S. Supreme Court in this case is to determine the weight-
ing which the ineffective legal counsel had upon Titlow’s acceptance of the plea
bargain.Is it really appropriate for the U.S. Supreme Court, in their judgments con-
cerning ineffective assistance of counsel, to be creating solutions and thus more work
for an overburdened defence system? It was hoped that the case of Titlow would
bring some answers to further define the effective assistance of counsel question in
plea bargaining cases but rather stated that “federal habeas law and Strickland v.
Washington do not permit federal judges to so casually second-guess the decisions
of their state-court colleagues.”73
It is recognised that the facts of the Titlow case were somewhat convoluted and did
not help the Supreme Court in taking advantage of the opportunity to clarify this
area of the law.74
Unfortunately this most recent decision of the U.S. Supreme Court does not leave
those unsure of their role in the plea bargaining process with further clarification of
72
http://www.scotusblog.com/case-files/cases/burt-v-titlow/ (accessed on the 26th of July 2013
73
Sherry L. Burt, Warden, Petitioner v. Vonlee Nicole Titlow on Writ of Certiorari to the United
States Court of Appeals for the Sixth Circuit [November 5, 2013] No. 12-414 Supreme Court
of the United States.
74
Rory Little, A messy follow-up to Lafler and Frye: Can “fun” facts produce “good” law?, SCO-
TUSblog ( OCt. 7, 2013, 10:12 AM), http://www.scotusblog.com/2013/10/a-messy-follow-up-
to-lafler-and-fry-can-fun-facts-produce-good-law/ (last accessed on the 19th of December 2013)
188
how they ought to be conducting themselves.

The mantel is now for the taking and further clarification in this area of the law now
relies upon those bringing appeals in those cases which are more straightforward and
less wrapped up in a procedural quagmire.75
6.4.7 Summary of US cases
The cases of Strickland, Hill, Padilla, Lafler and Frye show that the right to counsel
derived from the Sixth Amendment, guaranteeing the right to a fair trial, is now
included in the plea-bargaining process. Strangely, there is no constitutional guar-
antee of a plea bargain offer but only the regulation and fairness of the initiated
process. In Lafler, the majority held in their decision that the right to a fair trial
should be the goal when thinking about whether legal assistance was effective.
Frye and Lafler determined that the scope of the Sixth Amendment’s applicability
should be extended to include expired and rejected plea bargains. It was the most
contentious point between the majority and minority judges. There was agreement
between the justices that the Sixth Amendment extends to the plea bargaining
process and that entering a plea deal does constitute a “critical stage” of the criminal
proceedings. The minority judges asserted that the U.S. Supreme Court should have
never extended protection to those who had rejected a plea offer as the right to a fair
trial should be the goal. The majority judges, in reaching their decision, determined
that there is a general duty imposed upon lawyers by the Court to inform their
clients of favourable plea offers. Additionally, there is a right to a lawyer at all
staged of the criminal proceedings. The Strickland test states that the failure to
inform a client of the plea offer amounts to a defective legal performance.
The proper remedy for the problematic cases is for them to be remanded and for
the State to re-offer the plea deal to the client. The trial court then can use its
discretion to determine whether to apply the plea bargain and any subsequent re
sentencing.
The majority judges found that the Sixth Amendment guarantee extends to stages
where the defendant relies upon their lawyer’s counsel and seeks their advice on
75
The Latest Supreme Court Case on Plea Bargaining, or Not, by Cynthis Alkon, November 9,
2013, http://www.indisputably.org/?p=5185 (last accessed in the 19th of December 2013)
189
6.5 The European development of Plea Bargaining
certain matters. The Court’s focus should be on whether a fair trial cures “the
particular errors at issue.”76
Justice Scalia in his dissenting opinion was particularly wary of opening up an area
of law. This could create a floodgate whereby there would an influx of cases where
defendants could, using this newly founded constitutional right, challenge their con-
victions despite having a fair trial.Justice Scalia was indeed correct in his summation
that the Lafler decision would provoke a series of cases, include Titlow, to be re-
opened and re-examined on the basis of plea bargains and fair trial requirements.
The U.S. Supreme Court, in the decisions it handed down in Frye and Lafler, has
extended the right to legal counsel to the pre-trial arena and stages where the client
relies upon the legal counsel of their lawyer. The reasoning of the U.S. Supreme
Court was that even though one may be awarded a fair trial, the pre-trial procedural
infringements as well as prejudices that one has suffered will invariably and inevitable
damage the ability of the trial to be fair.
The decision in Lafler and Titlow have the potential to create a safety valve for those
who received below par legal advice. The undeniable fact is that the defence lawyer
is over burdened and under financed as such does not always have the ability to do
their job effectively and well. So the Supreme Court has created a constitutional
means by which to redress those who fall through the justice gap.
In various countries, the main driving force for the adoption of a plea bargaining
mechanism is the an increase in efficiency; the expense of trial avoided; as well as
reduction in the case load work of the courts.
Within the discussion of plea bargaining there is also the accompanying debate
relating to what form plea bargaining ought to take in the European context.
Maximo Langer investigated the appropriate mechanisms for the introduction of
plea bargaining into civil law jurisdictions with three example countries, Germany,
76
C. S. McKay. “Recent Decision Constitutional Law—the Pleabargaining Process—mr. Counsel,
Please Bargain Effectively For Your Client’s Sixth amendment Rights, Otherwise The Trial
Court Will Be Forced To Reoffer The Plea Deal and Then Exercise Discretion In Resentencing”.
In: Miss. Law J. 82.3 (2013), pp. 731–750.
190
Italy and France77 . Langer’s central thesis is that it is incorrect to talk about the
Americanisation of inquisitorial systems as it is unlikely that America’s adversarial
approach will be able to approximate the inquisitorial systems. The potential in-
fluences that the American form of plea bargaining can actually have on the civil
systems may be rather limited. Divergences may be seen between civil law countries
as each of them separately seeks to implement some form of plea bargaining.78
Langer asserts that another reason for this inability to have a complete transport of
the American model of plea bargaining into civil systems is because of the hindrances
in terminology. Langer proposes a new way of thinking about legal systems and calls
it “legal translation”and that its use is much closer to the truth than the commonly
used expression “legal transplant”.None of the studied systems have actually been
’transplanted’, into an entirely new legal system but legal drafters who have to
’translate’ the institution of plea bargaining from one system into another79 .
Plea bargaining can only be fully understood in the context of the actual dispute
between parties. Langer argues that the method of legal transplant is ineffective as it
is misleading because a “true” transplant of ideas does not always occur. Similarly,
to Pierre Legrand,80 who argues that legal transplants are impossible because of the
very nature of the fact that when transferring a rule from one system to another it
is never the same and also more importantly the context within which the rule is
applied, is not the same.
Langer says that the labels of adversarial and inquisitorial represent systems which
are inherently different and in this he oversimplifies the nuances of the two systems
and keeps them as two very separate distinct entities. Despite this oversimplification
the terms “adversarial” and “inquisitorial” are useful mechanisms and terms by
which to explain two different procedural cultures.
One of the biggest distinctions between two legal systems is that the inquisitorial
approach does not include a “guilty plea” concept but rather a confession. Plea
bargaining is is typically a product of the adversarial system. However, the very
idea of denying an individual their right to a fair trial, by a pre-admission of guilt
77
M. Langer. “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining
and the Americanization Thesis in Criminal Procedure”. In: Harv. Int. Law J. 45.1 (2004),
pp. 1–64.
78
Ibid.
79
Ibid.
80
Pierre Legrand. “European Legal Systems are not Converging”. In: International and Compar-
ative Law Quarterly 45, Issue 01 (January 1996), pp. 52–81.
191
goes against the adversarial nature of a trial.

All of the analysed countries provide a statutory provisions which allows the court
to reject the plea bargain if they deem that there was insufficient evidence upon
which to base a conviction or if the court fundamentally disagrees with the charges
agreed upon by the prosecutor and the defence.81
The central thesis of Langer’s argument is that the various legal transplantations of
plea bargaining will not result in a homogenised “Americanization” of systems but
rather it will lead to more fragmented approaches. Reinforcing that all systems are
very distinct. Three out of the four countries analysed would typically be described
as countries which are stable, observe the rule of law and have a very strong and
distinct conceptualisations of the rule of law.
It would appear that in systems where there is a rich heritage of Constitutional
protections of the rule of law and public faith in the judiciary, the translation of plea
bargaining into their systems will be more likely to be fragmented. Plea bargain
frameworks will be be made to ’fit’ into the current system. It is easier to translate
the concept of plea bargaining in newly formed countries, where there has been little
time to develop an established system of constitutional protections. This comes
hand-in-hand with the problem of little constitutional protection of human rights.
The position that countries with a rich cultural heritage have the most developed
protection mechanisms for the rule of law is not necessarily accurate. This is could
be particularly argued in the case of the U.S. which associated with the origin of
plea bargaining and is considered, by most ,to have a highly developed legal system.
It is also the country with the highest incarceration rate in the world82 . Is is more
appropriate to label the U.S. as having a troubled criminal justice system? One of
the inherent problems with plea bargaining is that it is often seen as a process which
is beyond the law, despite great efforts to either incorporate this practice through
codification or an abject rejection of the practice altogether.
How does plea bargaining impact upon the practice of the rule of law? The pre-
sumption is that the rule of law will guide and couch plea bargaining within human
rights protections. As we have seen in the high profiles examples highlighted above
the rights of the defence are frequently eroded. All observed countries include a test
81
Langer, “From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining
and the Americanization Thesis in Criminal Procedure”.
82
C. Alkon. “Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Criminal Justice
Systems?” In: Transnat’l L. & Contemp. Probs 19 (2010), pp. 355–418.
192
which tries to ensure that the judiciary will act as a fail safe against the coercion of
defendants giving up their fair trial rights especially innocent defendants.
Langer suggests that it is helpful to adopt Damaska’s model of ideal-type when con-
sidering how the criminal procedural systems of Germany,Hungary, United King-
dom, Serbia and Italy have adopted plea bargaining as it helps one to conceptualise
and analyse the reasons for legal transplantation between common and civil law
systems. This approach of Damaska also allows the identification of the incentives
and logic behind the reasons why certain systems adopt or resist reform. The terms
adversarial and inquisitorial describe two different structures used to understand the
ways in which certain concepts are defined in distinct criminal procedural systems.
For example, the concept of truth has a different meaning in both of the systems83 .
The inquisitorial lawyer perceives truth in absolute terms as the judge is supposed to
determine what events have occurred. This decision is regardless of any agreement
reached between the prosecution and the defence. The adversarial lawyer has a
“relative and consensual” view of the truth. This means that facts and occurred
events are what the opposite parties can agree rather than how the events truly
occurred.
These differing opinions over what constitutes the truth also impact upon the plea
bargaining process as the adversarial contains both concepts of “confession” and the
“guilty plea” whilst the inquisitorial procedure places less of an importance upon
the “guilty plea”but rather the confession. This means that the defendant cannot
end proceedings by pleading guilty. If this happens at the pre-trial stage, then the
judge still must ascertain the truth of the matter.84
Langer further argues that these distinctions between the ’guilty plea’ and the con-
fession are part of the legal conditioning that plays a large role in determining the
way individual criminal procedures are understood. In addition to this ’legal con-
ditioning’, the adversarial/inquisitorial divide provides two different norms through
which direction is given upon trial conduct as well as which technologies are allowed
during the procedure.85 As the inquisitorial systems do not recognised ’guilty plea’,
this gives rise to plea bargaining being perceived as an improper practice.
Also, the guilty plea and the confession differ as the guilty plea system gives more
83
84
Ibid.
85
Ibid.
193
room for the innocent to accept the plea bargain if they feel that the trial outcome
will be unfavourable. However, the overwhelming pressure of ever growing caseloads,
as mentioned above, has meant that some form of plea bargaining has been adopted
throughout Europe.
6.5.1 Germany
The case of plea bargaining in Germany is distinct from that of the U.S.A. in that the
introduction of Germany’s plea bargaining into its legal system was done through the
backdoor in the 1980s. German bargains are known as Absprachen, they concern
confessions and do not replace the trial but generally shortens them. Unlike in
the U. S. , where the prosecutor has vast discretion not to charge, the German
procedure of Klageerzwingungsverfahren allows the aggrieved person or party to
appeal to the judge to compel the prosecutor to pursue the case. The judge is
the key player in the plea bargains as they are the final decision-maker. It is then
the trial judge then who decides based upon the evidence in front of them in the
case docket whether there is enough evidence to proceed to trial. This procedure
though seriously undermines the principle of the presumption of innocence as the
trial judge is the same person who then is usually the trier of the facts. This then
creates an impossible situation whereby the defendant cannot be afforded a fair
trial as the judge cannot possibly impartial in these situations. As Germany has
sought to bring about reforms which might increase the immediacy and orality of
the trial (as in the U.S.A) they have lost the benefits somewhat of the investigation
dossier which is particularly useful for determining the guilt in the context of the
plea bargain. In Germany there have been calls to move back to this practice of pre
trial investigation which involves gathering a pre trial dossier. The argument for
returning to this model is that the dossier then would be open to the defendant to
test its validity and if a consensus is reached then a plea will be determined. In the
case that a consensus could not be reached then it would proceed to a streamlined
trial however this also presents its own whole host of problems in that if the pre trial
investigative dossier is skipped then the trial judge would have a very difficult time
knowing what to base his finding of guilt upon. The Geramn system has particular
problems with the practice of Absprachen because the German criminal system is
centred around the obtaining of a confession and with a plea you do not necessarily
achieve a confession. The question of what to base a finding of guilt is a central
194
problem for the German system. The problem originates from the fact that the
finding of guilt has traditionally been built upon a confession and the finding of
the substantive truth. The practice Absprachen now challenges this traditionally
held ideal. There were three court cases in Germany which instigated the formal
role of plea bargaining in the German system making it recognised by the German
Criminal Legal System.86 The introduction of these informal negotiations follows
the same reasons that have been cited in other jurisdictions which include some
form of plea bargaining. Namely that it helps to ease an ever increasing case load
as well as financial constraints and the influence of the prosecutors office However,
after much dispute in Germany over the informal practice of plea bargaining, the
German Federal Parliament passed legislation which now regulates the agreement
and makes them part of a formal procedure known as Gesetz zur Regelung der
Verstandigung im Strafverfahren.87 The move to regulate the practice was that it
was recognised that informal agreements which encouraged a confession of some kind
were becoming increasing popular within the German process. It was in light of the
fact that these informal agreements becoming so key to the criminal procedure that
the German Federal Parliament acted. Despite the fact that the German criminal
trial is concerned with ascertaining the ’material truth’ or ’substantive truth’.
As with all of the other countries observed the rise of the plea bargain alternative
is seen as a response to the way of dealing with the ever increasing case load of the
courts as well the paperwork. Simultaneously, the way in which offences are being
charged became more complicated and much more difficult to prove.
The complex German criminal procedure, with its manifold procedural safeguards
is not well equipped to deal with the new requirement of substantive law.88
In the 80s where it is generally agreed that some form of plea bargaining was creeping
onto the scene in Germany, an individual using the pseudonym Detlef Deal stated
that this widespread practice had turned the formal trial into nothing more than a
theatre, “where the participants pretend to contribute to the finding of a sentence,
which in reality has been agreed upon by all parties.”89 It is this very farcical act
of theatre that the German criminal justice system has trouble reconciling with the
86
BverfG Judgment of 27th of January 1987 and BGHSt 43, 195 (F.R.G.) and BGH Judgment of
June 10, 1998
87
R. E. Rauxloh. “Formalisation of Plea Bargaining in Germany - Will the New Legislation Be
Able to Square the Circle?” In: Fordham Int’l L. J. 34 (2010), pp. 296–331, p. 1.
88
Ibid., p. 3.
89
Ibid.
195
judge’s role for investigating the substantive truth because by its very nature the
plea bargain is not concerned with this but rather two things, firstly, the quick and
short disposal of the case and secondly that the defendant confess not whether that
confession be made by a contrite heart. This last matter also then has knock on
consequences for the purpose of the justice systems, do we want punishment to deter
and reform? Because if we do then plea bargaining is not the mechanism by which
this will be achieved, it encourages the defendant to play Russian roulette where
the prosecution holds all of the bullets. This sends the message that you can flaunt
the system and not go to prison albeit still have a lesser punishment to your name.
This is especially true in those systems where the death penalty is not on the cards.
There has been a shift in ideas of punishment from the traditional concept which
was one of retribution followed by deterrence to one where it is not about enforcing
the criminal procedure but solving social problems. Part of the problem identified is
in the increasing criminalisation of societal behaviours. The criminal law has been
expanded to include areas which it did not before.
The German system is an interesting to observe because the criminal procedure
does not recognise guilty pleas. As such the use of informal negotiations are linked
to those procedures which provide the prosecutor with some already pre-existing
negotiating powers. This is evident in section 407 of the Strafprozssordung which
gives the prosecutor the power to request an order imposing punishment from the
judge if there is sufficient suspicion if this is not appealed against by the accused
then it remains instated and the accused will receive either a fine or probation (this
is set out in sections 407-412 of the Strafprozssordung).90 The benefit of this method
is that there is no full trial (this is the closest it comes to a guilty plea which is used
in the common law trials.) This use of a penal order is very popular as the defence
and the prosecution agree upon the details with the judge and approximately 35%
of cases are dealt with by this kind of order.
There are several provisions within the German Criminal Code (GCC) which allow
for the prosecution to deal with a case before the trial. In section 153 of the GCC the
prosecutor is given the possibility to dismiss the case on the grounds of insignificance
so long as the court agrees with this assessment as well as the request. This provision
is an exception to the principle of compulsory prosecution.91 Section 153a of the GCC
90
Rauxloh, “Formalisation of Plea Bargaining in Germany - Will the New Legislation Be Able to
Square the Circle?”
91
Ibid.
196
was proposed by the judiciary (in 1974) as a way by which to fight non petty crimes.
This tool allows the prosecutor to refrain from using all or some of the charges against
the suspect but they can only make use of this option if the defendant agrees to make
a payment of some kind to a charity. This provision was hugely criticised at the time
as it was viewed as a mechanism by which to introduce the American version of ’plea
bargaining’ into the German system and seen as buying off the defendant. However,
section 153a was not a new creation in that the principle had already existed in the
German law it was just the German legislator incorporating it. As with most plea
bargaining mechanisms section 153a has been used
far to liberally and is used frequently for the basis of informal settlements.
“Especially during the preliminary investigation, it is common for the
courtroom actors to agree that the investigation will cease if the accused
pays a fine.”92
Section 153 can be used both for the advantage and disadvantage of the defendant.
The disadvantages are obvious in that it violates their right when there is insufficient
suspicion of a criminal act, and the presumption of innocence would mean that
there would be no prosecution at all. The advantages for the defendant are that
often times the case is redefined in order for it to be able to meet the requirements
of section 153a. In these kinds of circumstances an application occurs where the
evidence is complicated and overburdened. This provision allows the prosecution
the opportunity to combine an offer for settling with a warning that this is the last
chance for settling. In this way the prosecutor can indicate that, “a refusal to accept
an agreement could lead to a higher sentence recommendation.” This approach is
obviously unfair (and very similar to that adopted in the United States of America)
approach of punishing the defendant for objecting to the negotiations. But it is very
difficult to ascertain whether or not the final sentence would be anyway. As such it
is difficult to directly link the higher sentence to the rejection of the defendant to
negotiate. Rauxloh states that the use of section153a works well in those situations
where the parties know each other well. In these circumstances there is more likely
to be a higher level of trust in the informal negotiations and plea bargaining will be
employed successfully.
A common factor between the United Kingdom and the German system is that they
92
197
both revolve around the confession. In the United Kingdom the confession has the
effect of reducing the sentence by a certain amount. This amount decreases the
longer it takes the defendant to confess. Ultimately a remorseful confession will
have the affect of reducing the sentence but it is the element of remorse which the
court views highly. In Germany the reason for the confession is the sentence reduc-
tion and not the need for showing remorse. Schünemann states that the confession
depends upon an offer therefore there is no room for a remorseful confession to be
made.93 Additionally, the Federal High Court of Justice has held that a confession
is a mitigating factor. There are critics, however of this process which declare that
it undermines the principle of substantive truth as well as the presumption of inno-
cence. This practice is in conflict with Article 103(2) of the German Constitution
as well as §261 of the Code of Criminal Procedure where it enshrines the principles
that the defendant may not be convicted by a court where there is doubt about their
guilt. This draws it basis from the fact that innocent defendants sometimes confess
when they have nothing to confess.94 There are risks that juveniles will accept the
offer and the upper or middle classes who are in the financial position to be able to
pay the fine imposed. These offers are also favoured by defence lawyers where the
possibility of a conviction is very high.
A very obvious similarity between the German and the American system is that
section 153a allows the prosecution to make the offer for settling with a warning
that if the defendant turns it down they will not be able to settle at a later stage in
the proceedings. In this way the prosecutor can indicate that, “a refusal to accept
an agreement could lead to a higher sentence recommendation.”95 This is not a fair
approach to punishing the defendant for objecting to the negotiation. But, it is very
difficult to ascertain what the final sentence would be anyway so there is no way of
knowing if the higher sentence was a direct result of the rejection of the informal
negotiation.
As mentioned above the German system focuses on the judge determining the sub-
stantive truth, however the practice of informal negotiations bypasses this. This
onus upon the judge means that they must then examine all of the necessary ev-
idence at the trial. This requirement is part of the inquisitorial principle. This
principle means that that the judge must consider all of the surrounding relevant
93
94
Ibid.
95
Ibid.
198
evidence and not just that which the two opposing parties are presenting. The plea
bargain is completely at odds with this process because by it very nature it shortens
the process and requires less evidence to be examined. There are two central ob-
jections to the introduction of informal negotiations into the German system. The
first is the slim confession and the second is the waiver of the right to appeal. A
slim confession provides the defendant with the ability to conform but not introduce
any new evidence. This mechanism protects the defendant from having to introduce
any new facts which could result in a harsher conviction being brought upon them.
This runs contrary to the theory that a confession of any sort ought to reveal the
material truth and also it goes against the argument that a confession deserves a
sentence reduction as it aids with fact finding is no longer applicable. The danger of
the slim confession is that even though the prosecutor can make an offer the court is
not generally bound by this agreement. As such the court is entitled to determine,
“if the evidence during the hearing shows that an act has to be evaluated
on the higher charge the court has to convict accordingly. If however the
court accepts a slim confession without further investigation it will not
have any indication that a higher charge might be appropriate.”96
Another issue is the requirement of the principle of individual guilt.97 The principle
states that, “only the offender’s blameworthiness - and not any arrangement among
the parties or with the court - shall be the basis of the sentence.”98 In light of this
the concept of offering a mitigated sentence in return for the defendant’s negotiated
confession it is doubtful that it will be possible to continue this practice in light of
section 46 of the German Penal Code. According to section 46 of the German Penal
Code, such a confession might indicate remorse but a negotiated confession is all
about the rational calculation of the options and is therefore, based upon regret or
the willingness to reform one’s behaviour.99
As is the case with both the U.S. and the United Kingdom there has been much
debate in Germany about the legality of plea bargains/negotiated settlements. One
major concern from critics is the element of coercion and the revocation of the
96
Square the Circle?”, p. 14.
97
section 46 of the German Penal Code
98
V. J. Carduck. “Quo Vadis, German Criminal Justice System? The Future of Plea Bargaining
in Germany”. In: Warwick School of Law Research Paper No. 2013-17 (Special Plea Bargaining
Edition) (2013), pp. 1–34, p. 14.
99
Ibid.
199
defendant’s fundamental rights. The German Penal code as well as the German
Constitution protect the fundamental rights of the individual which are sometimes
questionable infringed when a plea or informal settlement is reached between the
parties in a particular case.100 As with U.S. and the United Kingdom there exist
safeguards to protect against arbitrary conviction. In this way negotiated agree-
ments conflict with article 103 (1) of the German Basic Law because they affect
the right of the accused to be heard as well as participate in the trial. In Ger-
many before 1982 no one had questioned the legality of the negotiated settlements.
Debate then ensued raising issues that the practice was illegal because it was not
included in the Criminal Procedure Code and as it did not expressly include the
practice of plea bargaining it meant that the practice must be illegal. This very
same point was used by proponents stating that just because it does not expressly
mentioned plea bargaining does not mean that it is illegal. It was section 136a that
was the catalyst for the debate. Section 136a forced both the Federal High Court of
Justice and the Federal Constitutional Court (hereinafter referred to as the FCC)
to consider the question of its legality in particular the principle of freedom from
coercion. The landmark decision of BGHSt NStZ 1987, 419 the FCC considered the
legality of discussions that had been made between the parties where they discuss
the case. It was stipulated by the court that they are not forbidden so , “long as the
law was respected.” There was held to be no violation in this particular case as the
final sentence which was received, “was commensurate with the offender’s guilt.” As
such the free choice of the defendant had not been violated.101 Similar to the Court
of Appeal’s decision in the case of Turner the German FCC established a set of
rules which were to be followed in the case of informal negotiations. By setting out
these limitations upon the process the FCC seemed to be indirectly accepting their
validity. This decision was then followed in 1998102 where the Fourth Senate of the
Federal High Court of Justice stated that informal settlements are not prohibited so
long as they remain within certain specified parameters. This case established that
discussions held in the preparation stage are allowed so long as they can be revealed
100
these include but are not limited to the following; presumption of innocence, the right to a
fair trial, the right to a lawful judge, the right to a judicial hearing, the principle of a public
trial, the principle of substantive truth and court investigation, the principles of immediacy
and orality, the privilege against self-incrimination, the compulsory prosecution, the duty of
presence of accuse and the prohibition of waiver pressure.
101
102
BGHSt NJW1998, 86
200
in the main trial. The trial court still had to investigate and find the objective truth
and had to figure out the credibility of the confession. Since this case it has been
recognised by the courts that informal negotiations are part of the German criminal
justice system.The decision did not provide clarity on the matter of waiver of appeal
being valid and the issue was brought before the Joint Senate of the Federal High
Court of Justice in 2004. The court stated that if a judgment was based upon a
waiver of the defendant it would only be valid if the defendant was informed of the
fact that they are not bound by any promises to waive the right to appeal made
previously as part of the agreement, the so-called ’qualified information’.103
As a culmination of the incoherent case law and the decision of the Joint Senate of
the Federal High Court of Justice the Plea Bargaining Act 2009104 was introduced
as a means by which to codify and also regulate the practice.105 Up until this point
judges had attempted to avoid stating point blank when and where they would
deem a negotiated informal settlement to infringe upon the German law. After
the Joint Senate issued their statement that plea bargaining was indeed legitimate
within certain limits they then requested that the German legislature step in because
the, “judicial limits of lawmaking had been reached.”106 Section 257c was introduced
into the German criminal procedure which allows for as well as regulates agreements
without infringing the German Criminal Procedure. This new provision means that
an agreement becomes valid when, “the court announces the possible context of the
agreement and both prosecution and defence consent.”107 Importantly, section 160b
allows for the communication between both the prosecution and the defence before
the trial so long as the communication, “is suitable to further the proceedings.”
These provisions both seek to reconcile the practice of informal settlements with
the German procedure of searching for the substantive truth. An important step
of moving plea bargaining practices out of the shadows and into the formalisation
mode was the new requirement in section 273 (1(a)) that all negotiations made
before the trial need to be recorded even the fact if they do not take place. Section
257c (4) tries to protect the rights of the defendant to a fair trial by stating that
103
104
Entwurfeines Gesetzes zur Regelung der Verstandigung im Strafverfahren, Druckszche 16/12310
105
Carduck, “Quo Vadis, German Criminal Justice System? The Future of Plea Bargaining in
Germany”.
106
Ibid.
107
Square the Circle?”, p. 20.
201
unless new facts emerge the trial is to proceed and is bound by the initial prognosis
of punishment. This seeks to provide some security as well as certainty for the
defendant in terms of what the defendant can expect from the outcome. It is only
if the defendant does not waive their right to appeal that there will be any formal
control of the informal negotiations.108
The new law has two parts which are of importance. The second part of the act deals
with the importance of the waiver of the appeal in § 35a, 302(1) which states that
a waiver of appeal cannot form any part of the agreement. A waiver would only be
valid if it can be demonstrated that the defendant has received qualified information
about it. This means that, “the court has to explain to the defendant that if his
waiver was part of the deal they are not bound by it.” This only becomes valid if the
defendant sticks to it after being informed by the court. But there are problems with
this system as well because of the applicable time limits. If the defendant declares
a waiver then changes their mind because they claim that they did not receive the
qualified information they have one week after the pronouncement of the judgment
within the ordinary time limits for appeals to bring their application. It was ruled
that this could not be extended because it would place them at a better position
then defendants who had not accepted or participated in the settlement. In light
of the attempts to formalise a form of plea bargaining within the German criminal
justice system Regina Rauxloh remains dubious as to whether the new legislation
will help to lift a practice out of informality into the realm of the formal and whether
formalisation will actually help the process at all.109
Unfortunately, the plea bargaining act was not all that had been hoped for. The
Act failed to aid with the much needed clarification of the law. As such the FCC
was requested to review the law enacted in 2009 and its constitutionality. The
FCC decision found the new law to be not yet unconstitutional. The FCC decision
permitted the legislature to regulate plea bargaining. In addition to finding the new
law not yet unconstitutional the FCC also stated that;
“The Court also called upon public prosecutors, as guardians of the law,
to monitor negotiation practices.”
Making the prosecutor the “watchdog” of the procedure was not a good move as
the prosecutor is generally concerned with the success of deals. The assignment
108
109
Ibid.
202
of the prosecutor to this role does little to help the constitutionality of the legal
arrangement.110 . The judgment of the FCC shows that there is awareness of the
plea bargaining because of the fact that the FCC is allowing the legislature to
regulate plea bargaining. The judgment failed to address the elephant in the room
of whether the practice of informal settlements is compatible with the inquisitorial
principle. There was no detailed analysis of the compatibility question as was there
no regard for the issues of lack of efficiency and practicability. Even though the
court recognises that one of the main reasons for prosecutors not keeping with the
law is because of the ’lack of practicability’.
In response to this dismissal and missed opportunity of the FCC Carduck suggests
that there are only four alternatives left open with regards to the integration of the
plea bargaining model into the German system. The first is that the status quo
could be maintained, secondly, criminalise informal deals that do not conform with
the law. The reasoning behind this would be that it would have a deterrent effect.In
practice it would be not workable as it would depend upon colleagues reporting on
each other and it would add to the already overburdened case load of the court.
The third option would be to abolish plea bargaining altogether delete it from the
CCP and argue for the implementation of the traditional inquisitorial procedure as
it had been functioning well. The problem with this option is that it would just
push the practice further underground. Finally, the fourth option would be for a
reformed version of plea bargaining as well as an adversarial element to the German
CPP. This would require a complete overhaul of the system and in this Italy could
serve as an example of a best practice in this case.111
The other alternative is the waiver in proceedings which means that the defendant
generally gives up some of their procedural rights. This could be that the defendant
agrees not to challenge the admission of certain evidence. The most common waiver
though is that of the right to appeal. There are normally three reasons why the
defendant will waive their right to appeal, they are happy with the agreed outcome,
reluctant to spend more money and time on the process or the defence counsel fails
to inform their client about the legal remedies against settlement or even that an
negotiated settlement has taken place between the two opposing counsel. This last
one is the most serious and has parallels with the U.S. cases of ineffective assistance
110
Germany”, p. 29.
111
Germany”.
203
of counsel.
Germany’s history of the development of plea bargaining is chequered with severe
debates amongst the judiciary, legislators and academics.It was recognised that the
practice of informal settlements developed because it was seen that the German
criminal justice system was too complicated and congested to navigate. So in order
to help keep the criminal justice system running the lawyers began engaging with
these informal settlements. Regina Rauxloh states that the unpredictability of the
legislation is a reason for the development of the informal negotiations as a means
by which to establish some security in the outcome for the defendant.112 Within
this debate in Germany (which is still ongoing) several academics have voiced their
opinions. One supporter of the informal negotiations, Hermann, argues that more
justice is achieved through using them because when all parties are involved in the
working towards an agreed outcome the defendant is more likely to be successfully
rehabilitated as they accept the sentence.113 This concept that the defendant accepts
the sentence as Hermann suggest embodies the overall problems with the system.
This supposed acceptance raises questions relating to whether the acceptance was
genuine and effective (a very similar problem to the U.S. problem of ascertaining
whether the assistance gives rise to a claim of ineffective assistance of counsel), how
involved is the defendant actually in the overall negotiation of the agreement? The
picture painted by Hermann places too much power with the defendant which is
unrealistic as the criminal law is not set up to look out for the interests of the
defendant but that of the victim.
There have been several problems identified within the German system. There are
two main problems which have been identified that of the conflict between prac-
titioners claiming that it is a necessary mechanism by which to conduct informal
procedures and the academics who point out that it is not compatible with the Ger-
man Criminal Code. In fact there is a third problem and that is of whose task is
it to bridge the chasm between the informal procedure system and the formal pro-
cess? This question has been left unanswered by both the legislator and the courts
leaving it up to the practitioners to forge the path ahead. Where two systems of law
develop side by side (which is easier to do in the context of the common law where
the judges are expected as well as allowed to develop the law) questions arise as to
112
113
Ibid.
204
who is allowed to pick which system to follow. The answer is that it is always the
defendant who gets to choose between the safeguards and the sanction reduction.
The reality is very far from the theoretical. There are two main problems with
this theoretical idea of the ’choice’ being vested in the defendant. The first group
of problems are that the defendant does not have enough information to make a
rational decision. Defendants generally lack insight into the court procedures, they
have no access to the prosecution file and as such they are not in a position where
they can evaluate the strength of the prosecution case against them. This places
the defendant in a position where they are dependant upon the lawyer’s decision.
The problem with this power balance is that the lawyer is sometimes serving their
own interests. The second group of problems resides with this myth of ’choice’ on
the part of the defendant. Giving the defendant the choice in an informal procedure
silences the public as well as the victim
Within both the adversarial and inquisitorial systems the method of selection of
cases deemed worthy of a trial by the legal profession are the same. There are no
real guidelines for selection rather it is done at random, where the emphasis is placed
more upon the defendant than the interests of the public. It is these very traditional
fair trial principles which are having to make way for the redefining of a fair trial and
sentencing for this new wave of “process economy”114 .115 Carduck observes that one
of the reasons that the German system has had such difficulty introducing a plea
bargaining model is because of the inquisitorial structure of the German system.
This has more to do with legal culture rather than a demarcation of being either
in the adversarial or inquisitorial camp. Because of the judge having a central role
this has a knock on effect on the impartiality of the judge. Because the court is no
longer neutral and is pursuing their own interests which places an emphasis upon
the defendant to accept the offer the court has proposed. The judge has a massive
discretion in choosing which cases to pursue and which ones are ’suitable cases’.
There is also no specified penalty range which can be offered. Hence a huge penalty
gap between the sentence after the trial and the sentence offered to the defendant
in case of a confession.. Also there is no mandatory requirement that the defence
participate in the case which further serves to weaken the position of the defendant.
What is really worrying is that the court is not bound by the negotiated agreement.
114
115
Prozessokonomie
205
So the defendant could well shoot themselves in the foot by offering their confession
if the court determines in line with section 257c (4) CCP that if,
“legally of factually significant circumstances have been overlooked or
have arisen and the court therefore becomes convinced that the prospec-
tive sentencing range is no longer appropriate to the gravity of the of-
fender of guilt.”
Also if the defendant acts in a way which is inconsistent with the agreement it can
be revoked however on the basis of what kind of behaviour is not specified. Problems
arise if the defendant then appears before the same judge to whom they confessed.
The judge then must remain neutral but it is hard to still maintain the presumption
of innocence if you have already heard the confession of the defendant.116 Herein lies
the biggest distinction between the Anglo-American system and the German. In
the Anglo-American an admission of guilt or confession is required. Whereas in the
German the confession should be an integral part of the defendant’s conduct at trial
but does not require a confession rather it was the substantial confession previously
as set out in section 244 (2) of the CPP.
One of the main criticisms of the German legislation is that it is very ambitious
as it aims to incorporate the practice of plea bargaining so as to benefit and profit
from the informal procedure while still maintaining the main principles of the formal
criminal trial. The legislation fails to cover those informal negotiations which take
place before the main trial. Another problem is that of the confession (it is not
sufficient to automatically establish the defendant’s guilt). The court is still expected
to study the dossier carefully to make sure that there are no factual or legal obstacles
to the agreed outcome. This creates a paradox for the courts because the purpose of
the Act was to shorten the proceedings rather then to lengthen but if the judge still
has to examine the confession it is questionable how much shorter the proceedings
will be in reality. The result is that the courts will be placed in a position where
they will have to disregard the Federal High Court of Justice and the extension
of the use of informal negotiations. This practice just goes to further demonstrate
the ever widening gap between the substantive criminal law which is used to solve
social problems and the fact that the expectation as well as the demands upon the
criminal procedure and the role of punishment have well and truly shifted from what
they used to be. The problem that the German system faces with this transplant of
116
Germany”.
206
informal negotiations is that the criminal justice system is predominantly concerned

with finding the truth of the confession. Up until now,
“The essential question is how the authenticity of the confession can be
tested.”117
Both Rauxloh and Carduck identify that the confession of the defendant is a critical
element to the German negotiated settlements. Carduck raises the question of the
infringement of article 3 (1) of the German Basic Law’s principle of “equality before
the law”.118 Carduck’s argument asserts that this principle is also being infringed
because a distinction is being made at law between those defendants who want a
trial (being treated less fairly) and those who enter into negotiations. The only real
difference between them is that one has the right not to self incriminate. Also the
defendant who wants and remains silent until a plea bargaining opportunity presents
itself is in a much better position then the one who confesses at the very beginning
of the interrogation.119 .
The law is far from the reality of the practice. This position was further supported
by an empirical study which was conducted in 2012 where it was observed that
both the judiciary and the lawyers disregard the application of the letter of the
law altogether. The results were shocking. In blatant disregard of the law 35% of
the judiciary confronted the defendant with a sentencing alternative whether they
wanted a trial or not and 28% accepted a waiver of appeal contrary to section 302
(1) of the CPP.120
The informal negotiation presents changes to the goal posts in this area of the law
however, the German criminal justice system has not been able to shift gear in the
same direction yet.
Bussmann made the following remarks reflecting on the practice of informal agree-
ments within the German system:
“Through giving up the punitive, repressive paradigm in favour of an eco-
nomic paradigm and abandonment of hierarchical, authoritarian form of
interaction in favour of process, criminal procedures become increasingly
117
118
Germany”, p. 16.
119
Ibid., p. 16.
120
Ibid.
207
similar to administrative law procedures, solving conflicts of interests [...]

by negotiation.”121
The German system can be split into two parts the search for consent or the
truth.122123 Reformers in Germany have been pushing for the consent principle as
opposed to truth and justice. The consent principle stipulates that, ’the consent of
the prosecution and the defence provides a sufficient basis for the court’s decision; if
the parties have agreed on a disposition, the court can ratify that agreement with-
out examining its basis. The court would then be relegated to the role of a notary
public with very limited supervisory functions.’124 This shift in approach would no
longer require a confession. The criticism of this approach are that it turns the
criminal process into one of finding an acceptable resolution which is then deter-
mined between the prosecutor and the defence.125 This situation is unacceptable in
that truth and consent are then lending legitimacy to criminal judgments. It is of
course naive to presume that the truth can always be achieved but this is not a
reason not to pursue it. As Sisyluss states we must make our best effort even if we
cannot succeed.126
6.5.2 Italy
Italy introduced a practice similar to plea bargaining in the 1980s in its new Crimi-
nal Procedure Code (1989) to cope with the rise of Mafia cases. The Italian system
had become overburdened because of its strict adherence to the principle of legal-
ity127128129 and this time there were no alternatives available to alleviate the case
121
Kai-D Bussmann. Die Entdeckung der Informalitat: uber Aushandlungen in Strfverfahren und
inhre juristische konstrucktion (baden Baden: Nomos Verlagsgesellschaft). Nomos; 1991, p. 27.
122
T. Weigend. “Is the Criminal Process About Truth? German Perspective”. In: Harv. L. & Pub.
Pol’y 26 (Winter 2003), pp. 157–173.
123
T. Weigend. “Crime, Procedure and Evidence in a Comparative and International Context Essays
in honour of Professor Mirjan Damaska”. In: ed. by Maximo Langer & Peter Tillers John
Jackson. Hart Publishing, 2008. Chap. The Decay of the Inquistorial Ideal: Plea Bargaining
Invades German Criminal Procedure, pp. 39–64.
124
Ibid., p. 56.
125
E. Wesslau. “Konsensprinzip als Leitidee des Strafverfahrens”. In: N. J. W. 1 (2007).
126
Weigend, “Crime, Procedure and Evidence in a Comparative and International Context Essays
in honour of Professor Mirjan Damaska”, p. 60.
127
A. R. O. Bagirov. Support to the anti-corruption strategy of Azerbaijan (AZPAC) Techical paper
on Plea Bargaining and issues related to its implementation in Azerbaijan. Tech. rep. Council
of Europe, 2008.
128
Ibid.
129
This principle states that no punishment shall be imposed other than upon assessment of the
criminal responsibility within a criminal proceeding and that when determining this sentence
208
load of the courts. As a result the courts responded by issuing amnesties.130 This
practice, however, did not do much to help the situation as such Italy, unlike Ger-
many, introduced a codified concept of plea bargaining as a new criminal procedural
code with a strong due process focus which was adopted in 1989. This made re-
dundant the previous criminal procedural code which was adopted in Mussolini’s
era131 . This new code included two new methods for avoiding the trial, pattegia-
mento (party agreed sentences) which are also referred to in layman’s Italian as
’merchandising’ and the second is abbreviated trial.132 The introduction of these
two alternatives to the full trial developed the practice of negotiated justice. Italy is
distinct from its European neighbours in that it has set about trying to harmonise
the constitutional principles of criminal law and procedure with the practice of plea
bargaining. In order to achieve this parts of the Italian constitution were amended
so as to ensure negotiated justice would not be regarded as unconstitutional.133 The
concept of negotiated justice was recognised in the late 80s as being a functioning
and existing concept which was further emphasised by the Committee of Ministers
in their Recommendation R (87) 1870 where they recognised that negotiated justice
was indeed,
“a possible way to grant the simplification of criminal justice and there-
fore invited States, wherever constitutional and legal traditions allowed
it, to introduce “guilty pleas”.”134
Federica Iovene identifies three problematic areas with the Italian version of alterna-
tives to the full trial they are the issue of the defendant’s responsibility and how this
ought to be assessed, the role of the judge and finally the determination of guilt.135
She views these as being the most problematic areas because of the nature of the
Italian constitution and the way in which the legislature has sought to reconcile
them with the shortened trial. The legislature started the process of introducing
plea bargaining by swapping the inquisitorial model for more of an accusatorial pro-
that the judge must only be guided by the law.
130
Bagirov, Support to the anti-corruption strategy of Azerbaijan (AZPAC) Techical paper on Plea
Bargaining and issues related to its implementation in Azerbaijan.
131
132
133
Ibid.
134
F. Iovene. “Plea Bargaining and Abbreviated Trial in Italy”. In: Warwick School of Law Research
Paper No. 2013/11(Special Plea Bargaining Edition) 11 (2013), pp. 1–14.
135
Ibid.
209
cess which was first piloted in 1981 in article 77 of law number 689 of November 4.
It was during this time that it was realised that harmonisation of some sorts was
going to be necessary in order for plea bargaining to be a practicable and viable
option in Italy. If this was not achieved the practice of the plea bargain would
contravene the follow principles ;article 112 mandatory prosecution, article 27 (2)
presumption of innocence, article 25(2) no punishment shall be imposed other than
upon assessment of the criminal responsibility within a criminal proceeding, and
article 101 (2) the judge in the determination of the sentence shall be guided only
by the law. All of these constitutional principles, depending on how you approach
it, could either be obstacles to justice or safeguards for ensuring justice.It was the
tension between these two points that plea bargaining finds itself. As in Germany
where the constitutional court was requested to rule on the constitutionality of plea
bargaining so was the Italian constitutional court. The two courts adopted two
different approaches with the German one stated that it was “not yet unconstitu-
tional” whereas the Italian Constitutional Court ratified the shift towards a more
accusatorial model and therefore legitimised a model of consensual justice.136 Article
111 (5) of the Italian Constitution provides this ’legitimisation’ by providing that
the defendant may renounce their right of having evidenced challenged at trial ac-
cording to the cross-examination rule and agree to be judged upon the investigative
file records.137 .
It was in 1990 that the constitutional court made it clear that a purely adversarial
system is not compatible with the constitution. It was because of this declaration
of incompatibility that the judge was then required to fulfil certain criteria so as
to ensure that the practice would not become unconstitutional. The judge was
then required to assure that the defendant had confessed voluntarily, what were the
reasons for the acquittal and they must also examine the legal qualification of the
facts charged against the defendant and also the application of the aggravating and
mitigating circumstances.138 As is the case in Germany, if the Italian judge finds a
problem or irregularities of some kind then they must refuse the plea bargain and
then the normal proceedings must go ahead.139 This position is somewhat connected
to the fact that the guilty plea does not really exist in the same way in which it does
in an Anglo-American system. Rather the confession (which is a form of evidence
136
Iovene, “Plea Bargaining and Abbreviated Trial in Italy”.
137
Ibid., p. 4.
138
Article 144 (2) of the CCP
139
Iovene, “Plea Bargaining and Abbreviated Trial in Italy”, p. 6.
210
and as such allows the judge the ability to investigate the substantive truth) which
was not included in the first round of reforms in 1989 was seen rather as the waiver
of the right to silence and of the privilege against self-incrimination. There is a
big difference, however, between the possibility to waive these rights versus making
them part of a waiver through which the defendant gains advantages.140 The German
constitutional court had a similar issue to decide when they had to determine that,
“a confession is only compatible with the constitution only when it is voluntary and
spontaneously given.”141 This position goes back to the centrality of the judge to
the trial as they have a duty to ensure that a false confession is not admissible as
well as searching out the truth. Federica Iovene asserts that because in the Italian
system there is the absence of a guilty plea this means that the trial is still an
attractive alternative. As such this state of affairs then this serves to guarantee that
the defendant’s right to choose a plea-bargain is “free and self-determined”.142
The problem with the guilty plea being replaced by the confession is that it could
serve to encourage a more passive judiciary who would then be free to rely upon
the guilty plea with the agreement of the parties rather than fulfilling their duty of
searching out the truth actively which would violate the principle of legality.143 The
role of the judge in this situation is then reduced to nothing more than ensuring that
there are no reasons for an acquittal to take place however this was deemed to be
unworkable and an infringement of the principle of the presumption of innocence.
In order not to conflict with this principle it was stated that ’bargained sentence
presupposes an actual assessment of the defendant’s responsibility.’144 Because of
the lack of the guilty plea and the issue of how to determine the guilt of the de-
fendant these combined issues raise questions about the role of the judge in these
shortened trial proceedings. In particular that according to article 101 (2) of the
Italian Constitution provides that the judge is independent and subject only to the
law. In order not to contravene this principle that the determination of guilt should
be by the law (in the course of the trial) and that the one-third reduction stands
in opposition to the concept that reduction must be in proportion to the guilt, the
Constitutional Court stated that a balance must be struck. They held that the
judge must make sure that the negotiated sentence even though it is not the ’just’
140
141
Ibid.
142
Ibid., p. 8.
143
see article 101 (2) of the Italian Constitution
144
Article 111 (5) of the Italian Constitution
211
punishment must be appropriate taking into consideration article 27 paragraph 3.

This position of the court showed that they recognised the importance of plea bar-
gaining as well as introducing a new alternative method for the determination of
punishment.
The Italian reforms established alternatives to the full trial as a means by which to
reconcile their judicial practice with the pattegiamento. The pattegiamento has a
very limited application because it is only applicable to minor offences. Once applied
the sentence cannot exceed 2 years of imprisonment. The prosecutor and the defence
enter into an agreement as to what the appropriate sentence to be imposed upon
the defendant should be without having to go to trial.145 This procedure can be
initiated by either side however if you did not start the proceedings then you must
give your consent. If for some reason the prosecution opposes and does not give their
consent then the judge is entitled to reject their opposition if they consider it to be
unfounded. A distinction between the U.S. and Italian system is that the prosecutor
has to consent to this procedure being initiated whereas in the U.S. the prosecutor
has total freedom to refuse or offer a deal to the defendant any time after the
initiation of the negotiation.146 Within the Italian system the defendant is protected
by section 448 (1) of the Code of Penal Procedure which states that the prosecution
shall not withhold consent unreasonably. The prosecutor must justify their decision
to reject a defendant’s request for party-agreed sentences in writing and these reasons
for their rejection are subject to judicial evaluation. Significantly the judge cannot
impose a penalty other than the one agreed upon by the parties. The reduction
in the ultimate sentence is one-third off what the final sentence would have been if
imposed at the full trial. The second option available is the abbreviated trial (which
was model to some extent upon the English summary judgment147 ). This procedure
authorises the judge to base his verdict upon the criminal case established by the
prosecution. In this situation the accused renounces their right to cross-examine the
evidence. This revocation is worrying as it is a major pillar of the right to a fair
trial. Abbreviated trials can be applied to all sentences no matter what the offence
is. However, they can only be requested by the defendant and it is not necessary to
obtain the consent of the prosecutor (this is since the 2000 amendments). They can
be made orally if during the preliminary hearing and then afterwards in writing.
145
146
Ibid.
147
Ibid.
212
The extent of the judicial supervision is dependant upon the type and nature of
the request. There are two that can be made either simple or conditional. Simple
applications are formal in character whereas conditional applications and the extent
of the judicial control are dependant upon whether or not the request has been
properly constituted. The appeals possibilities are very limited and the prosecutor
may only appeal against a decision which was given on the offences other than those
which were not on the indictment.148
The advantages of the abbreviated trial are that it spares the state a full trial. If
the defendant is found guilty they will receive a one-third reduction of the sentence
that the judge would have otherwise imposed upon them. Also, due to the recent
amendments the fact that the consent of the public prosecutor is not needed also
expedites the process. Additionally the defendant is in a position now that they
can also request supplementary evidence however if new evidence is admitted it is
only the judge who is permitted to cross-exam the witnesses.149 This practice of the
defendant revoking their cross-examination is underpinned by article 111 (5) of the
Italian Constitution. The disadvantages are that when considering the request for
a simple abbreviated trial it virtually places the defendant in a position whereby
they actually obtain a sentence reduction upon request because the consent of the
public prosecutor is no longer needed.150 . The major concern is that it has become
an “alternative trial” as opposed to an “abbreviated trial”. Therefore not actually
alleviating the trial burden of the courts. This is evidenced by the fact that in 2012
34% of cases were dealt with either by plea bargaining or abbreviated trial (86.583
plea bargaining and 46.713 by abbreviated trial.).151
6.5.3 Hungary
Hungary’s criminal procedure follows a traditional inquisitorial model, heavily in-

fluenced by the German system. The prosecutor plays a pivotal role in the pre-trial
investigative stage which can be divided into four parts, the investigation; prosecu-
torial phase; the court phase and the implementation phase.152 There is an emphasis
148
149
150
Ibid., pp. 11–12.
151
Ibid., p. 13.
152
Herke, Megállapodások A Bűntetőperben.
213
for the investigation to be completed within a two month period. This period can
be extended up to two years from the start of the original investigation.153 Within
the Hungarian system, there are special procedural categories which confer on the
prosecutor certain powers, without a formal indictment, to take the defendant to
court within 15 days of the committed criminal offence. These expedited hearings
occur when the defendant was caught red handed or has admitted to committing
the act. The prosecutor is under an obligation to provide the defendant with counsel
unless they have appointed one themselves. In this process, the only advantage for
the defendant is an early hearing of their case. The prosecutor solely decides upon
the process and does not need to obtain the consent or the approval of the defendant
to pursue this option.154
The Hungarian criminal system does include an abbreviated trial process somewhat
similar to the plea bargain referred to as the ’waiver of trial’.155 In Hungary, as with
all of the other countries mentioned the ability to waive the trial156 was introduced
in the law of 1999 CX.157 This practice is shorter and cheaper. As with Italian
abbreviate trial, the Hungarian Btk allows for the a reduction in the imprisonment
term according to Article 87/CCC, ’In the case of waiver of the trial the term of
imprisonment may not exceed three years in case of committing a criminal offence
punishable by more than five but less than eight years of imprisonment; two years in
case of committing a criminal offence punishable by more than three but less than
five years of imprisonment, or six months in case of committing a criminal offence
punishable up to three years.’158 Similarly to the Italian system the articles 533-
542 of the Be set out the procedural requirements for qualifying for the waiver of
trial. They set out that the offence can only be punishable by a maximum of eight
years, that the accused states formally that they waive their right to a trial and that
they confess.159 The waiver of trial follows a somewhat similar format to both the
German and Italian systems in that it requires certain formalities to be met first
before the ’waiver of trial’ can be granted. The new legislation of Act LXXIII of
153
Klára Kerezsi. “Costs of Alternative Sanctions in Hungary”. In: European Journal on Criminal
Policy and Research 6 (1998), pp. 561–572.
154
T. Király. Büntetőeljárási jog. Osiris Kiadó, 2008.
155
K. Karsai & Zs. Szomora. Criminal Law in Hungary. Wolters Kluwer Law & Business, 2010.
156
tárgyalásról lemondás
157
F. Zsanett. A Büntető Tárgyalási Rendszerek Sajátosságai És A Büntető Eljárás Hatékonysága.
Ed. by E. Bócz, P. Hack and Cs. Herke. HVG-ORAC Lap-és Könyvkiadó Kft, 2012.
158
Ibid.
159
Szomora, Criminal Law in Hungary.
214
2009 stipulates that the ’waiver of trial’ has to take a written format which then
constitutes the “deal” between the public prosecutor and the accused. Additionally,
the defendant would then sign an agreement whereby they recognise that they have
waived the right to a trial and ask the court to recognise this fact.160 This written
document which forms the basis of the deal must include the following things such
as the facts of the offence which have been confessed, the way in which the offence
is qualified as well as framed in terms of the BtK and the penalty to which the
accused has consented. This sort of ’deal’ will only have legal effect in one respect if
it triggers the (process of) ’waiver of trial’.161 If the court agrees with the deal then
it is obliged to implement the terms of the imprisonment and the mitigating factors
as well. As is apparent from both the German and Italian systems the Hungarian
one is not unusual in that it places the judge in a central role.162 The ’waiver of trial’
mechanism is most often used in those cases where the offender has committed a
criminal offence in the capacity of some kind of a criminal organisation. In these
situations this type if the offender cooperates with the public prosecutor and the
investigating authorities, they will be rewarded by a waiver of a trial and also the
8 year maximum imprisonment penalty does not apply here.163 If the individual
does not cooperated in such a way then the mitigation of the offences as well as
imprisonment is not a viable option. The other exception to the rules for qualifying
for a ’waiver of trial’ is if someone dies as a result of the crime committed and if the
offender cooperates then they will fall within the category of ’cooperating offenders’
and qualify for an abbreviated trial.164 In the Hungarian context it is the prosecutor
who instigates as well as recognises the opportunity for there to be a ’waiver of
trial’. The public prosecutor then informs the defendant of this opportunity. If the
defendant consents to this procedure then the public prosecutor submits a written
arrangement to the court and asks for a public session which would replace the trial.
“The public prosecutor may not withdraw the motion for the adjudica-
tion of the case at a public session.”165
Depending upon the outcome of the session if the public prosecutor thinks the
defendant is guilty of a more severe offence or is guilty of some other crime then
160
Zsanett, A Büntető Tárgyalási Rendszerek Sajátosságai És A Büntető Eljárás Hatékonysága,
p. 275.
161
No other legal consequences are attached to the arrangement deal
162
163
see Article 534/A Be
164
165
Ibid., p. 199.
215
the public prosecutor can submit a motion to have a full blown trial.166 It is then
up to the court to decide if they agree with the assessment of the situation by the
public prosecutor. The danger of this situation is that if the court agrees with the
assessment of the prosecution or if they do not agree with the deal then the court
can decide that the arrangement is no longer binding. This places the defendant in
a very precarious position of uncertainty. The Court adjudicates upon the filing of
the motion at which both prosecutor and the defence counsel must be present (this
is a mandatory requirement). The onus is upon the court to establish the guilt of
the defendant by taking into consideration the confession, the documents included
in the investigation and the arrangement. The judge is still the central figure in the
investigative stage searching out the substantive truth as in the German system. If
f the accused objects to the arrangement then the court refers the case to (a full)
trial because no direct evidence procedure may take place at a public session.167 If
there is no confession of the defendant at the public session other evidence shall be
examined at trial.
The Hungarian system dangerously includes a waiver of appeal in article 542/C,
paragraph 1, Be. This waiver of appeal means that the defendant cannot appeal
against the following issues; the establishment of guilt (the confession), the facts of
the case, the qualification (that is if it is different from that which is included in the
indictment) and the punishment. These are significant areas for the defendant not to
be able to appeal against. As such this raises questions concerning what safeguards
are put in place to protect the interests of the defendant. The waiver of appeal
presents questions as to the procedural rights of the defendant, are they informed of
the extent of what their waiver actually means? Also,with whom does the obligation
to inform the accused of the extent of the waiver lie ? This unanswered question
presents a problem in terms of securing the fundamental rights of the defendant in
Hungary. As of yet there have not been any steps taken to rectify this imbalance
unlike in Germany.
The Public Prosecution Service (PPS) is an independent body from the government.
It is stipulated in the Basic Law of Hungary in article 29 (1)- (7) that the General
Prosecutor shall answer to the parliament and provide a report of his activities. The
General Prosecutor is appointed for a six year term by the parliament who elects
166
Ibid., p. 199.
167
Szomora, Criminal Law in Hungary, p. 200.
216
them.168 The prosecutor carries the responsibility for carrying out the investigation.
The prosecutor wields a huge amount of power in that they normally set the trial to
which the court will then play.169 Mediation has only been a feature of the criminal
code since the reforms in 2007. In order to qualify for mediation the offence must be
punishable by a maximum of five years imprisonment.170 The new code widened the
role and the discretionary power of the prosecutor. The usage of mediation has not
been very popular amongst academics as there was some scepticism as to its effective
workings. The widening of the prosecutorial discretion also meant that the public
prosecutor was then endowed with powers somewhat similar to that of the judge.
The result of using mediation is that it means that you may terminate the procedure
if the offence is punishable by a maximum of three years imprisonment. Also the
accused may be released without being convicted and sentenced if they discharge
their responsibilities. The advantage for the victim is that they get payment quicker
and directly from the accused.171 The discretionary power of the prosecutor enables
them to act in certain cases so as to avoid the full blown trial. In those cases where
the offence is negligible, does not affect the society, or if the suspect collaborates
with the authorities (e.g. becomes an undercover agent.) the prosecutor is within
their discretionary powers to choose when to prosecute or to drop charges.172 The
discretionary powers of the prosecutor can be applied at four different stages; the
first is at the ordering and conduct of the investigation at this stage the prosecutor
may opt to decide to dismiss before the trial even gets started, secondly, once the
prosecution has begun here there are three options available to them 1.) terminate
the prosecution, 2.) partially omit or postpone the indictment and 3.) suspend the
prosecution where and when mediation seems the best solution, the third stage is
when the prosecution reaches the court here the prosecutor can still opt to modify
or drop the charge and the final stage is when the suspect pleads guilty at this
stage the prosecutor can choose between an arrangement, the waiver of the trial
or the omission of the trial.173 In these situations the court normally accepts the
motion of the prosecutor unless the preconditions are not met which then results
168
E. Róth. “The Prosecution Service Function within the Hungarian Criminal Justice System”.
In: Eur J Crim Policy Res 14 (2008), pp. 289–309.
169
Ibid.
170
Róth, “The Prosecution Service Function within the Hungarian Criminal Justice System”.
171
Ibid.
172
E. Róth. “Prosecutorial Discretion and its Limits”. In: Acta Juridica Hungarica 43, Nos 3-4
(2002), pp. 387–399.
173
217
in the documents being returned and the case will then proceed to a full trial (this
happens in the case of an attainment). The instances of when an application or
motion by the prosecutor is rejected are very limited indeed. If the suspect does
not agree to the reprimand then they have a legal remedy available to them called
a ’complaint’. In these circumstances the prosecutor has to prosecute because the
absence of the consent means that there has to be a court procedure.174 A reprimand
(which is somewhat similar to a warning) is used in those cases where the offence
is negligible. Once the stage of prosecution has been reached the prosecutor is in a
much better position to assess the situation as well as the seriousness of the crime
and here may choose to exercise the omission of prosecution.175 The postponement
of prosecution is somewhat similar to that of a suspended sentence in the United
Kingdom. They are most commonly used in juvenile cases as a means by which
to avoid the criminalisation of juveniles from an early age. Within the Hungarian
system Act XIX of 1998 enshrines the principle of legality. Because of this if there is
enough evidence to support a prosecution then the prosecutor must prosecute. It is
in these circumstances the prosecutor can use discretionary powers but in order to
be able to postpone the prosecution the prosecutor must hear the accused’s consent.
Recommendation R (87) 18 enshrines the principle of discretionary prosecution. The
ECtHR concluded that discretionary prosecution depend’s on the suspects consent
therefore does not infringe the principle of the presumption of innocence.176
The principle of reformation in peius does link in with the practice of plea bargaining
in that the concern is always about the unpredictability of the offer given by the
prosecution; will they stick by it or in other cases will the court (which it is able
to do in some jurisdictions) ignore the deal that has been reached between the two
parties. In this situation the defendant is in a delicate position as they do not
know if the court will either order a full trial or instate an even harsher penalty.
In some jurisdictions in the E.U. there is a complete prohibition on the practice of
reformation in peius.The reason for the prohibition is to ensure that the defence
has the legal guarantee that they are able to file an appeal without the risk that
the judgment might be altered to the detriment of the accused.177 The general idea
behind this theory is that the accused can rest assured that on appeal it would be
174
Róth, “Prosecutorial Discretion and its Limits”.
175
Róth, “Prosecutorial Discretion and its Limits”.
176
Ibid.
177
Cs. Herke and Cs. D. Toth. “The prohibition of reformation in peius in the light of the principle
of fair procedure”. In: Int. J. Bus. Soc. Res. 3.3 (2013), pp. 92–98, p. 93.
218
fundamentally unfair to impose a stricter penalty. The prohibition of this principle

lies in the fact that amongst the E.U. Member States there is a general obligation
to ensure that trials are fair. It is this concept of ’fairness’ that prevails when
ensuring that the minimum procedural rights are ensured. The principle of a fair
trial has also been referred to as an ’universal principle’ which is taken to be an
all encompassing element meaning that there is a group of rights which make up
what is to be considered a “fair trial”.178 Hence, the principle of equality of arms is
at odds with the practice of plea bargaining because the presumption of innocence
guarantee is bartered away by the defence and the defendant for some negotiated
justice. The basic ethos behind the prohibition of reformation in peius is that the
defendant should not suffer any prejudice because of a surprise during the appellate
procedure. In this way the defendant can be free from having a further punishment
placed upon them because they dared to file an appeal.179 Herke rationalises that
the step of prohibiting the practice of reformation in peius is akin to enshrining the
principle of equality of arms in the criminal procedure.180 The rationale behind this
statement is that it enables both parties to be in an equal position before the law
when it comes to the expectations of the appeal.
Basically the equality of arms is nothing but the equal distribution of
risks and in constitutional law it is the manifestation of the requirement
of equality.181
This statement about the ’equal distribution of risks’ is interesting when we come
to consider the plea bargaining relationship because the undertaking of a plea is
indeed a risk.Can it really be said that there is an equal distribution of the risk in
the plea bargaining dynamic? The practice also conflicts with the quest for searching
out the substantive truth.182 Hungary’s introduction of the waiver of trial presents
more questions than it can answer. The Hungarian system is perching perilously
close to the abyss where indigent defendants will fall and be forgotten. The system
has indeed created an expedited process which does serve some of the Article 6
requirements of having a trial without unreasonable delay but the problems still
remain of an underfunded and under-resourced defense lawyer who cannot embrace
178
Király, Büntetőeljárási jog.
179
Herke and Toth, “The prohibition of reformation in peius in the light of the principle of fair
procedure”, p. 98.
180
Ibid., p. 93.
181
Ibid., p. 97.
182
219
the benefits of a plea bargaining system for their client.
6.5.4 Serbia
The Serbian Criminal Procedure Code was reformed in 2009 to both streamline the
system and to make it more efficient in removing a vast backlog of cases. Rather than
improving the situation, the reforms, in removing several courts, have exacerbated
the problem. The effects of these reforms has been its encroachment on the right
to a fair trial in its attempts to help foster a more efficient system. The realisation
that the new system was inefficient led to another reform of the law in 2011.
The 2009 reforms introduced the concept of plea bargaining. The inclusion of plea
bargaining into the procedural code was both welcomed and encouraged by the U.S.
Justice Department representatives working with the OSCE, to bring efficient and
equitable justice to the Republic of Serbia. The drive for the criminal procedure
code reforms were, in part, to show to the E.U. that Serbia, as a potential new mem-
ber state candidate, is serious about combating crime and bringing to account those
who are still at large for the atrocities that they have committed.183 As in the case of
both Germany and Italy there are constitutional principles which are odds with the
practice of plea bargaining. Article 36 of the Serbian constitution ensures the right
to equal protection of rights in court proceedings to everyone.184 Additionally the
Serbian constitution also provides for the prohibition of self-incrimination185 . The
protection from self-incrimination is an important provision to take into considera-
tion when discussing the practice of alternative practices to trial which may indeed
require the suspect to admit or confess to a particular crime in order to benefit from
the shortened trial. In order to help these reforms and also to encourage a more
transparent, impartial and independent judiciary, the High Judicial Council and the
State Prosecutorial Council in 2012 took over the administration and the budget
of the courts and prosecution services. This move was seen as a way by which to
foster the appearance of independence and transparency. It was also hoped that
this would expedite the reforms coming into force.
183
Human Right Network), issue: 01/2012, pages: 159-176, om www.ceeol.com (accessed on the
6th of August 2013
184
Human Right Network), issue: 01/2012, pages: 159-176, om www.ceeol.com (accessed on the
6th of August 2013
185
article 33 paragraph 7
220
In a 2012 report by the European Commission, to the European Parliament and

the Council on Serbia’s progress , it was noted that there was still an overwhelming
number of outstanding cases which had not yet been brought before the courts;
“In 2011, following a new accounting methodology, the courts received
2.23 million new cases, resolved 2.65 million cases and were left at the
end of the year with a backlog of 3.34 million cases. However, major
imbalances persist in the courts’ workload and a comprehensive analysis
of the functioning of the new court network is needed. The quality
of statistics needs to be improved. Amendments aimed at improving
the efficiency of the Constitutional Court were adopted but the Court
continued to face a significant and rapidly growing backlog of cases.”186
This is still the case. The number of backlogged cases is still considerable despite
the fact that the 2011 Criminal Procedure Code (CPC) improved upon the 2006
code and reformulated the practice of plea bargaining. The proposed reforms to the
CPC warrant close inspection as they reveal the intention of the legislature when
it comes to how the plea bargain process should operate. It is also an indicative
picture of the Serbian interpretation of plea bargaining. Article 313 part two is
entitled “Agreements of the Public Prosecutor and the Defendant” this contains
the plea agreement particulars. It specifies that the defendant must have their
lawyer present in order to complete a valid plea agreement. The law stipulates what
the agreement must include and that, as with most countries with a plea bargain
practice, the defendant must confess to the charged crime(s). Unlike the common law
jurisdictions where a guilty plea is necessary a confession will suffice. Additionally,
the prosecutor can make a statement that they will not pursue prosecution for those
criminal offences which are not covered by the plea agreement (article 314 (6) (1)).
A plea bargain can only be dismissed when the plea does not contain the specifics set
out in Article 314 or if the defendant did not appear at the hearing and was unable
to justify their absence (see Article 316). This offers some protection against the
coercion as well as what the ECtHR refers to as a ’constraint’ upon the exercising of
the defendants due process rights. Following on from this article 306 (8) (1) uses the
language of ’knowingly and voluntarily’ when stipulating that the defendant must
show they have admitted to the criminal offense and that they are fully aware of the
consequences of admitting their guilt (Article 306 (8) (3)).187 According to Article
186
the 2012 European Commission report on Serbia’s progress
187
Article 306 strongly follows the American plea bargaining model that the court has the right to
221
307, the public prosecutor; the defendant as well as the defense counsel can appeal
against the decision of the court denying the plea agreement within 8 days of the
ruling.
The parameters of what the content of a plea bargain should be are set in article
305.
As mentioned above there are certain conditions which must be met before a plea
agreement will be considered not to infringe the defendant’s fair trial right. The
proposed articles follow closely the U.S. model this is evident from the fact that a
plea agreement will only be accepted if the defendant ’knowingly and voluntarily’
confessed to the criminal offence or criminal offences; that the defendant is also fully
aware of the consequences of waiving their right to a trial, and most importantly
that the evidence available does not run contrary to the defendant’s confession. As
is the case in Hungary a defendant will be considered to be a ’cooperating defendant’
where, as part of the plea agreement, they will testify against a fellow defendant
or give evidence concerning criminal activity in return for a sentence reduction.188
This will only occur if the ’proving or preventing the criminal offence referred to
in Article 162 (paragraph 1 item 1) of this Code outweighs the consequences of the
criminal offence he had committed (cooperating defendant)’ (see Article 320).
In connection with ensuring that the defendant has ’knowingly and voluntarily’
entered into the plea agreement a further safeguard is provided for in the from of
the preparatory hearing. This is a mechanism by which the president of the court
can hear from all of the parties to ensure that all of the procedural steps have been
complied with so that the case will be able to proceed to trial without any problems.
The article 348 specifically provides that the prosecutor and the defendant have to
notify the president of the panel that a plea agreement has been reached. They must
also make it clear to the president of the panel if the plea agreement refers to all
or some of the charges on the indictment if only to a few then the indictment must
be severed so as to reflect this fact. Once the plea agreement has been announced
and the charges presented to the president of the panel the president will then ask
the defendant if he understood the charges. If the president is not convinced that
the defendant has understood the charges against him the president of the panel
is then within his remit to read the charges again in such a way in order to make
them understandable to the defendant. The president will then ask the defendant if
not necessarily implement the agreed plea bargain (Article 306 (1))
188
Article 320 part b
222
6.6 Plea Bargaining in the ECtHR case law
they want to state their position in relation to the charges and to state his position
regarding the restitution claim that is if there is to be one filed. Finally, the president
of the panel will turn to the question of the defendant’s confession. If the president
of the panel is not convinced that the defendant has understood the gravity of their
confession as well as the meaning and its consequences for them then the president
is within their powers to relay to the defendant in such a way that they would
understand the meaning and consequences of their confession. At this stage the
defendant is not required to state their position with regards to whether or not they
confess to the alleged charges.189
Serbia is at a unique crossroads but instead of seizing the opportunity to underpin
some much needed fundamental trial rights it is following the example of its Euro-
pean neighbours. Here we can truly see a case of copy paste of legislation into a
system which lacks the historical guarantees of the rule of law to ensure that the
indigent to not slip through the safety net. All is not lost yet but much work must be
done to ensure that justice is not sold for some cheap and not so cheerful negotiated
justice.
In order to better understand the placing of plea bargaining it has to be understood
in the context of the dispute between parties. Langer argues that the method of legal
transplant is ineffective as it is misleading because a “true” transplant of ideas does
not always occur. Similarly, to Pierre Legrand, who argues that legal transplants are
impossible because of the very nature of the fact that when transferring a rule from
one system to another it is never the same and also more importantly the context
within which the rule is applied, is not the same.
The ECtHR itself is no stranger to the use of methods to expedite its own backlog of
cases. One of the major criticisms of the ECtHR is the fact that it has too many cases
resulting in prolonged waiting. As a result of the ECtHR being under considerable
pressure to work its way through its backlog of cases in an expeditious manner
the mechanism of friendly settlements and unilateral declarations have arisen. The
practice of friendly settlements is more widespread in the use of civil proceedings.
189
Article 392 of the criminal code
223
The principle of unilateral declaration operates where a ’friendly settlement’ has not
been successful between the ECtHR and the State. In these kinds of situations, the
government may choose to make a declaration whereby they recognise that they have
committed a violation in contravention of the ECHR and then undertake to provide
the applicant with redress190 . This procedure is governed by Rule 62A of the Rules
of Court. The declaration, unlike the friendly settlement, must be made in open
court with the opportunity for the applicant to present to the ECtHR any reasons
why the ECtHR should refuse the declaration 191 . If the applicant is satisfied with
the terms of the unilateral declaration then the case will be struck off the list.If the
applicant would like further consideration on the case by the court then the Justices
will have to determine if the extra proceedings are justified. If the Court determines
that it is no longer justified to pursue the case192 , then the unilateral decision must
satisfy the following non-exhaustive list:
• Existence of sufficiently well-established case-law in the matter raised by the
application.
• Clear acknowledgement of a violation of the Convention in respect of the ap-
plicant – with an explicit indication of the nature of the violation.
• Adequate redress, in line with the Court’s case-law on just satisfaction.
• Where appropriate undertakings of a general nature (amendment of legislation
or administrative practice, introduction of new policy, etc.)
• Respect for human rights: the unilateral declaration must provide a sufficient
basis for the Court to find that respect for human rights does not require the
continued examination of the application.193
This resolution process is also attractive for all involved parties as the government
issues a public apology and avoids having to go to trial. Most of the ECtHR case law
dealing with the application of the unilateral declaration have concerned cases with
extremely long proceedings. The ECtHR has focused mainly on the procedural relief
for the applicant rather than plea bargaining practice as it relates to the equality of
arms between the parties.
190
http://www.echr.coe.int/Documents/Unilateral_declarations_ENG.pdf
191
http://www.echr.coe.int/Documents/Unilateral_declarations_ENG.pdf
192
Article 37 (1) (c)
193
http://www.echr.coe.int/Documents/Unilateral_declarations_ENG.pdf, accessed on the 30th
of July 2013
224
There are a few cases where the court has addressed the question of whether the
plea bargain practice infringes the right to a fair trial of the individual and these
are discussed in the following sections.
6.6.1 Deweer v. Belgium (Application number 6903/75)
In the case of Deweer v Belgium194 the applicant died during the application process
but his widow and his three daughters continued the application as they considered
themselves to have a moral and material interest in seeing the proceedings through
to completion. The deceased applicant owned a shop employing several member
of staff. His shop was the subject of an Economic Inspectorate General inspection
where it was found that there was an infringement of the Ministerial Decree of 9
August 1974 for fixing the price of selling beef and pig meat. The applicant, when
questioned, made a statement in which he declared that he had made a mistake, in
good faith, by mixing up the meat category. This accounted for the difference in
the price of the meat. He mentioned that as soon as he was made aware of this fact
he subsequently corrected the prices.
After the Inspection and the statement was taken from the deceased applicant, the
Louvain procureur du Roi ordered the closure of the shop within forty-eight hours of
the notification of the decisions. The applicant was given two options, the first was a
friendly settlement which involved paying 10,000 BF and the enforced closure would
cease the day after that payment was received or to make the payment on the date
that the judgement was passed on the offence. The applicant was given eight days to
show whether he accepted the settlement. It was recognised that the offence would
not constitute imprisonment but if the settlement was not accepted greater fines
and a trial would incur. The settlement was a way to avoid the trial and the closure
of the applicant’s shop. The applicant accepted the settlement and responded by
letter. In the letter, he also outlined several problems with the handling of his case
and also reserved the right to pursue restitution in the civil courts. He stated that
the only reason that he paid the settlement money was to limit the damage suffered
by him and the prejudice that he had also suffered which came from the shop closure.
The payment which was made by the applicant,
“Although often referred to as a fine by way of settlement, the payment
194
Application No 6903/75, Judgment, Strasbourg, 27 February 1980
225
thus made was not regarded in Belgian law as a penalty. Consequently,

the payment could not be taken into consideration when dealing with
further offences and was not entered on the judicial records.”195
The Commission was of the opinion that it was the combined use of the offer of
settlement or the closure decisions which would infringe Article 6 (1). The State
submitted that the order of the procurer du Roi used to provisionally close the
applicant’s shop was a ’control and safety measure’ and it was not intended to, in
the wording of Article 6 (1) to be a determination of his criminal or civil rights and
obligations196 . The State further argued that whatever was reached in the settlement
could not have affected the applicant’s right to a fair and public hearing.
“there is nothing in the ... Convention ... to prohibit the combined appli-
cation of the friendly settlement and provisional closure procedures.”197
The ECtHR stated that it considers cases on an individual basis and will limit itself
to the discussion of the facts raised by the case. The ECtHR determined that the
issue before it is to be decided in relation to Article 6 (1) was whether the rule and
provisions set out in paragraphs 1 and 2 of section 11 of the 1945/1971 Act were
applied in the ’specific circumstances’ in a combined way that is compatible with
the ECHR198 . It was agreed that criminal proceedings had been instigated against
the applicant. The applicant did not have the status of the ’accusé’ at the time
the procureur du Roi instigated the proceedings. There was no arrest or official
notification of the impending prosecution. The applicant was presented with the
available options and it was up to him decide his course of actions. When the
procureur du Roi wrote to him, he offered the option of avoiding prosecution by
paying the sum of money. There were a string of events which led the ECtHR to
conclude that there could be a “charge” determined in line with Article 6 (1).
The charge could be said to be the official notification given The ECtHR considers
that to be from the 30th of September 1974 that the applicant was under a criminal
charge.
During this process the procureur du Roi held back the threat of an even greater
penalty as well as trial to persuade the applicant not to to go to trial. This is a very
similar situation to the use of plea bargaining in criminal cases.
195
at para 15, Application number 6903/75
196
see para 39, Application number 6903/75
197
198
226
The State argued that settlements of all kinds take place with some form of con-
straint or a threat of escalation with the result of serious prejudice for the applicant.
The State also outlined that in most cases, that the mere possibility of a criminal
trial is a sufficient enough of threat to encourage applicants to forgo their right to a
trial. Even though the ECtHR recognised that this practice does occur the pressure
which is sometimes applied, is not in contravention of convention so long as the re-
quirements of both Articles 6 and 7 are not infringed. In this way, the member states
are, “free to designate and prosecute as a criminal offence conduct not constituting
the normal exercise of one of the rights it protects.”199
It was the threat of the closure order and the subsequent acceptance of the settlement
that was the real issue of the applicant’s complaint. It was asserted that even though
the applicant paid 10,000 Bf, the Act enabled a possible range of fine from 3,000
BF to 30,000,000 BF.t. This disproportion between the two amounts added to the
pressure for the acceptance of the settlement. Unsurprisingly, in these circumstances,
the applicant accepted the settlement.
The ECtHR ultimately held that the practice of the settlement in the Belgian context
was,
“To sum up, Mr. Deweer’s waiver of a fair trial attended by all the guar-
antees which are required in the matter by the Convention was tainted
by constraint.” (emphasis mine)200
The ECtHR stated that there was no need to consider whether or not the waiver
of the right to a trial had also infringed paragraphs 2 and 3 of Article 6 as the
question was entirely subsumed by Article 6 (1). It was agreed that the applicant
was completely deprived of the right to a fair trial because, “under constraint, he
agreed to its waiver.”201 . The ECtHR held unanimously that there had indeed been
a breach of Article6 (1).
6.6.1.1 Natsvlishili and Togonidze v Georgia (Application Number 9043/05)
In the more recent case of Natsvlishvili and Togonidze v Georgia202 the court ad-
dressed for the first time the specific question of plea bargaining as it applies to
199
see para 51
200
see para 54
201
see para 56
202
Judgment, Strasbourg 29 April 2014, Application No. 9043/05
227
Article 6. This is the first case where the court had to discuss the question of
compatibility with the ECHR.
The ECtHR considered that there had been no violation of Article 6 (1), or (2) of
the ECHR holding that plea bargaining between prosecution and defence [was said
to be] a common feature of European criminal justice systems. It has become a
widely accepted practice but not uniform in its implementation. This lack of uni-
formity also means that its application is not always compatible with the ECHR.
The Natsvlishvili case stated that so long as plea bargaining is accompanied with
sufficient safeguards against abuse, its application is not open to criticism before
the ECHR. The court based its decision heavily upon the fact that Mr Natsvlishvili
entered into the plea bargain voluntarily and having understood its consequences.
The ECtHR also noted the fact that within the Georgian legal system plea bargain-
ing was a procedure that was integrated into its criminal system and as such there
were safeguards in place to protect the defendant. The ECtHR relied upon this
fact when coming to the conclusion that it was not considering the compatibility
with the ECHR. Mr Natsvlishvili’s complaint is, unfortunately not uncommon, he
alleged in his application that the circumstances of his arrest (the fact that he was
made to share a cell with the man that kidnapped as well as four other for murder
was intimidating), the fact that his conviction would not be examined on the merits
and that the decision of the court would be final and not subject to an appeal, and
finally that he was threatened by the Georgian authorities not to pursue an appli-
cation with the ECtHR otherwise they would annul the plea bargain and reinstate
criminal proceedings against him, all amounted to a situation where he was left in
a position whereby he had no other choice but to accept the plea bargain.
The circumstances of the complaint are not unique but how the ECtHR decided is.
The court first considered that under Article 6 (1) that the practice of obtaining
a lesser sentence via a plea bargain by waiving certain procedural rights did not
present a problem under Article 6 but it must be established that the defendant
has, entered into the plea bargain voluntarily, having understood its contents and
consequences. If this is the case then the plea bargain cannot be discussed before the
ECtHR. The court also considered the application made under Article 2 of Protocol
7 and held that so long as Mr Natsvlisvili had waived his right knowingly then his
waiver of the right to appeal was not in contravention of his procedural rights.
Concerning the question of his presumption of innocence the ECtHR looked solely
228
at the statements that had been made to the media concerning the case in the lead
up to the trial. As stated elsewhere the presumption of innocence has been defined
very narrowly by the court. They determined that there had been no violation of
his presumption of innocence as all statements made to the press had not directly
and specifically referred to Mr Natsvlisvili. The court did not consider whether the
practice of plea bargaining itself interfered with the presumption of innocence. The
ECtHR here missed the opportunity to address this question.
It is essential that the safeguards that are in place be analysed by the ECtHR to see
if they have been included and are in place at the time the plea bargain was entered
into so as to really determine whether the defendant entered into it voluntarily.
Article 6 (3) entitles the defendant to a lawyer at all stages of the trial and the plea
bargain unless they waive their right. This was another argument mounted by the
applicant that he had not been entitled to legal representation from the beginning
of the trial.
There was one dissenting judge, Judge Gyulumyan who stated that he was partic-
ularly concerned with the fairness of the plea bargain in the Georgian system. His
remarks are true and are real concerns not just for the Georgian system but for
the application of the plea bargain in any system. The judge’s remarks concerned
the fact that the plea bargaining system operated on the basis that, “allowed some
alleged offenders to use the proceeds of their crime to buy their way out of prison
and, on the other, risks being applied arbitrarily, abusively and even for political
reasons.”203 He cited the fact that there had been “several shady factual circum-
stances”, in the lead up to the acceptance of the plea bargain namely the conditions
of his detention which called into question the, presumption of equality between the
parties pending the relevant negotiations.’204
Judge Gyulumyan agreed with the majority that there had been no violation of
Article 6 (2) or Article 1 of Protocol No. 1 to the Convention. However, he did find
several factors which led him to the conclusion that the plea bargain had violated
Article 6 (1) of the Convention and Article 2 of Protocol No. 7.
One factor which he highlighted was the issue that Mr Natsvlisvili agreed to a
bargain with the prosecution in respect of the sentence and did not plead guilty
to the charges. This was a distinction that the majority had failed to make. The
203
para 1. of the partly dissenting opinion of Judge Gyulumyan
204
para 3. of the partly dissenting opinion of Judge Gyulumyan
229
fact that there was no guilty plea would indicate that a higher standard is required
because the applicant had not admitted guilty. Therefore the domestic courts should
subject the evidence to a much higher level of scrutiny than that which is required
for those who admit their guilt.
Despite the fact that Judge Gyulumyan made the statement that he did not want to
make observations about plea bargaining in general but rather limit his comments
to the Georgian system there are five points which can be highlighted that have a
general application.
Firstly, when determining whether the safeguards have been adhered to the ECtHR
must see if there is a written record of the negotiations, this record will ensure
that there are no procedural irregularities.Secondly, there must be no coercion or
intimidation, thirdly that the principle of equality of arms is respected. fourthly,
that there should be judicial supervision and finally that there should remain the
right to appeal against a plea bargain. The last two points are interconnected in
that without the judicial supervision (as in the case of Germany and Italy) it limits
the fairness of the plea. Additionally, the right to appeal should not be used as
a bargaining chip by the prosecution to secure a waiver of procedural rights. The
right to appeal and plea bargaining do raise complicated question concerning the
presumption of innocence especially if the case is tried before the same judge.
The approach of the ECtHR in this case raises fundamental questions as to what
message is being sent concerning the presumption of innocence.This model and shift
in approach has resulted in not only the national level but also at the ECtHR in no
longer looking for the truth and justice as the goal but guilt and moving the case
forwards quickly. As a result plea bargaining still has a long way to go before it is
compatible with the ECHR.
The presumption of innocence is deemed to secure the fairness of a conviction and
to provide a base for the right of the defence. The reverse onus of proof that
plea bargaining incurs would only be compatible with article 6 (2) of the ECHR
if both fairness and rights of the defense are observed. The truth is established
between the arguments of the two equal parties. The ECtHR case law has held
that it requires three key elements to be protected according to the interpretation
of Article 6 (2). Firstly, that the right not to be publicly presented as convicted by
public authorities before the final judgment, secondly, the fact that the burden of
proof is on the prosecution and that any reasonable doubt or guilt should benefit
230
the accused and finally the right of the accused to be informed of the accusation.
The decision in Natsvlisvili concerning the question of the presumption of innocence
comes at an important time when the commission is proposing the directive on
presumption of innocence. The European Parliament and the Council had to take
into consideration the subsidiarity and proportionality principles when it comes to
the approximation of the rules across the member states so as to enhance mutual
trust concerning the right to be presumed innocent. The lack of coherency leads
to a lack of mutual trust between judicial authorities. The aim of the directive is
to complement the pre-existing safeguards and to ensure that the presumption of
innocence is protected from the very beginning of the criminal proceedings. So as
to ensure that the directive does not conflict with the principle of proportionality it
is stipulated in the directive that it only deals with, “certain aspects of presumption
of innocence, that are more directly linked to the functioning of mutual recognition
instruments and to police and judicial cooperation in criminal matters,”205 this is
why it is does not conflict with the purpose and spirit of the proportionality principle.
There is an undeniable link between plea bargaining and the presumption of inno-
cence. What plea bargaining and the ECtHR are asking us to do is to take sides
when it comes to the reverse onus of proof. The one version is that plea bargaining
is indeed compatible with the rationale of presumption and that the presumption is
not an absolute one in that the right may be waived making it not an inalienable
right. Alternatively, it could be held that the presumption provides for interferences
such as plea bargaining. Plea bargaining could be compatible with the ECHR if
the whole process is fair. In these instances waiver becomes the pivotal point in the
debate over compatibility. Despite this it is impossible to deny the fact that the
presumption of innocence is a safeguard against the presumption of guilt.What must
be clearly established is the waiver of rights. It must be ensured that procedural
safeguards such as the presumption of innocence are respected to ensure that the
plea bargain does not violate them.
205
Proposal for a Directive of the European Parliament and of the Council on the Strengthening
of certain aspects of the presumption of innocence and of the right to be present at trial in
criminal proceedings, COM(2013) 821/2,para 49
231
6.7 More pitfalls than benefits

This chapter has provided an in depth discussion of the key tensions which arise
when plea bargaining is used in the Justice process in various different jurisdictions.
It has been illustrated, particularly in the case of the U.S., that plea bargaining
and the access to effective legal counsel have become truly intertwined with respect
to ensuring a fair trial. The U.S. has focused upon fairness in plea bargaining by
considering whether the defendant had adequate legal advice when they considered
accepting the plea bargain. The utmost concern of the U.K. and its European
counterparts is ensuring that the procedural elements are fair. The role of the lawyer
to the plea bargaining process is a concept which is becoming more important in
Europe. The slow increase in lawyers present at the pre-trial investigative stage,
when the plea bargaining occurs, has happened as a result of ECtHR judgments.
The benefits of the plea bargain are as the ECtHR describes them to be the benefits
of speedy adjudication of criminal cases which results in the workload of both the
prosecutors and courts being less. Additionally, it is a very successful tool which
can be used to combat corruption and orgainsed crime and also help to reduce the
number of prison sentences.
Unfortunately the benefits do little to counter the pitfalls which are experienced in
a plea bargain.
The U.K. has developed a plea bargaining model whereby defendants are encouraged
to plead guilty at an earlier stage of the proceedings and in return the defendant will
receive up to one third reduction off their sentence. There is a general disapproval
of parties meeting with the judge in chambers to discuss the case as it erodes the
transparency as well as public nature of the trial. It is inappropriate for a judge to
give the impression to the defendant that the submission of a plea results in a certain
sentence. The U.K. does allow for the judge to make an indication of sentence using
the sentencing guidelines. In this respect,the U.K. has less opportunity than the
U.S. for formal plea bargaining regulation because of the lack of certainty over the
overall awarded sentence in a particular situation. The U.S. sentencing guidelines
allow for more room for arguing for a sentence reduction. Plea bargaining, for the
most part, is unregulated in the U.K however serious fraud offences are subject to
the regulation of legislation partly to do with the fact that the bargain involves large
amounts of money. Despite this, there is a general distaste towards plea bargaining
practices as it erodes the principles of an adversarial trial which has as its focus of
232
the attainment of justice. The dislike also arises as plea bargaining degrades the
rights of the defendant(s) as well as affording the possibility of stricter and harsher
sentences evasion.
The U.S. has the most developed system of plea bargaining. The original purpose
and intention of plea bargaining has morphed from its conception in Brady v. United
States. It was originally intended as a mechanism to be used when an individual,
who has overwhelming evidence of guilt against them, to plead guilty and to be
afforded the opportunity to “bargain” something out of the situation. The practice
in the U.S. has become so far removed from this original position that many critics
now argue that the practice is employed rather as a deterrent to deny people their
right to a fair trial. This is done by imposing upon them a harsher penalty then
the one received under the terms of the plea.The prevalent myth that those who are
innocent do not plead guilty has been challenged by several studies most notably
that of Dervan and Edkins. Their study indicated that the innocent do plead guilty
because they do not want to face jail time so they would rather admit guilt then risk
being sent down. Ineffective assistance of counsel cases have led the U.S. Supreme
Court to decide that the Sixth Amendment assures both the right to legal counsel
as well as the right to a jury trial.The U.S. Supreme Court has now extended the
right to effective legal assistance to the pre-trial phase including the plea bargaining
process. In addition to this, if the defendant rejected the plea offer on the basis
of ineffective legal counsel then the defendant may have recourse to have their case
reopened and the plea re-offered to them.
The European development of plea bargaining has developed in a multifaceted way
which is highly dependant upon the studied country. The countries selected for the
study have developed a legal system which all have introduced a version of plea
bargaining so as to make their systems more efficient. These countries require that
the defendant must, to some extent, either admit guilt, confess or waive their right
to a trial in order to receive the benefit of the plea. This practice does raise questions
about the sanctity of the presumption of innocence as well as the fact that once one
admits guilt to a crime should it be possible for that individual to later upon appeal
revoke their admission of guilt on the premises that it was achieved through coercion
of the plea bargain? This is a question that the U.S. Supreme Court Justices are
currently grappling with. The other issue is that plea bargaining makes a mockery
of a system where it is intended to deliver justice but how can it be justice when it
can be traded and given away in order to produce a result.
233
The ECtHR has addressed the issue of plea bargaining in terms of causing possible
violation of the ECHR for the applicant rather than the content, matter and practice
of plea bargaining. The ECtHR does have a vast backlog of cases and this is used by
those who would seek to undermine and highlight the ineffectiveness of the ECtHR.
Plea bargaining exists at the ECtHR in the form of “friendly settlements” and
“unlitateral declarations” which are used by the court to encourage the accused
State to reach a favourable settlement. The use of these practices invariably brings
up the question of what about the principle of equality of arms as the bargaining
position between the applicant and the State this situation is invariably even more
extreme. Despite these practices employed by the ECtHR to reduce its own caseload,
the court will frown and inevitably find a violation of the ECHR if the use of a plea
bargain will mean that the defendant was coerced into waiving their right to a trial
(Deweer v. Belgium). Where the defendant’s ability to make an informed decision
both about the plea bargain and the option of going to trial is tainted by constraint
of any kind then it will be deemed that their Article 6 (1) right has been infringed.
There are undeniable benefits of plea bargaining, it reduces costs, brings cases to a
speedy conclusion, reduces the backlog of cases and helps to bring those guilty of
crimes to justice. In all the countries studied, the drive for adopting plea bargain-
ing was the increase in efficiency and effectiveness of the Judiciary. Despite these
benefits, the elephant in the room still remains. What happens to those who are
innocent of the crime(s) with which they are charged? We trust in a system which
protects the innocent and punishes the guilty.The criminal justice system is reliant
upon people having faith in the system that is why it is essential for trials to be
transparent and public. People need to know what happens in courts. When the
innocent are punished for exercising their fundamental right to a trial it does beg
the question of who does the criminal justice system serve? Have we sold out true
justice for the cheap convenient fast-food of plea bargaining McJustice?
234
7 Conclusions and recommendations
The original overarching hypothesis of the thesis was that there is now a post-
modernistic interpretation of the trial and that the conflict with the right to a fair
trial originates from the problem that the language of fundamental rights is couched
in modernistic terminology.
As such there is a need to re-evaluate the purpose, if any, of the trial in this setting.
Critical to this debate is the question of how should plea bargaining be understood
in the language of modernism when in actual fact it is a post-modernistic practice.
This position informed the research questions which were first posed in the research
methodology. The questions to consider were,
1. What constitutes a fair trial?
2. What safeguards are in place to protect the defendant’s right to a fair trial?
3. What are those structures/practices which act as barriers to access to justice?
4. Does the expedited form of justice that plea bargaining offers, require a recon-
ceptualisation of the right to a fair trial?
5. What is the role of plea bargaining within the modern trial?
7.0.1 What constitutes a fair trial?
This was established on the basis of the ECHR, the ICCPR, and the case law of the
ECtHR. Additional the concept of overall fairness of the trial was considered in this
respect because it was important to identify the parameters of fairness in the trial.
The reason for the need to establish the parameters was due to the fact that it was
necessary to decide where if at all did plea bargaining fit into the discussion about
what constitutes a fair trial. It was concluded that a fair trial must be considered
to be by the ECtHR as expansive as it is flexible. This approach allows it to adapt
235
Conclusions and recommendations
to the changing times which is necessary.These debates on fairness, access to legal

counsel, and justice bring us to the question are there really rights for all.
H. L. A. Hart’s work focuses upon addressing the issue of what is a ’right’; the moral
justifications for interfering with that right and the ’right’ to a fair trial.1 Rights are
classified as special and general. These categories are based upon the premise that
all men have the right to be treated equally free.2
It was argued that current modern interpretations of fairness are inadequate to deal
with the very real pressures of the plea bargain. This was evidenced in the recent
decision of the ECtHR concerning plea bargaining.
When assessing whether the trial has been fair the ECtHR looks at, if , “taken as a
whole, guarantees that a person charged with a criminal offence should ... be entitled
to be present and participate effectively in the hearing concerning the determination
of criminal charges against him.”3 Looking to the overall fairness of the trial the
ECtHR will take into consideration the doctrine of margin of appreciation when the
Court declares that it does not act as a court of fourth instance as the ECtHR does
not assess whether the domestic law has been applied appropriately or to assess
the facts.4 The ECtHR will rather, in these circumstances, focus on, “The question
which must be answered is whether the proceedings as a whole, including the way
in which the evidence was obtained, were fair.”5 This notion of what constitutes
fair is set out in Article 6 and enumerated in its paragraphs in the form of a non
exhaustive list of minimum requirements.
In light of this it can be stated that there are two parts which make up the whole
of the complete concept of the right to a fair trial,
1. the expression of individual autonomy in the form of the right to be represented
as well as take part in an active role in their own defence;
2. is the fact that in order for a trial to be conceived of as being fair it is nec-
essary for it to be public and the verdict must be reached through either an
accusatorial or adversarial method.6
1
Hart, “Are There Any Natural Rights?”
2
Ibid.
3
Zhuk v Ukraine Application Number 45783/05, Judgment of 21 October 2010, para 26
4
5
Allan v U. K. , Application Number 48539/99, Judgment of 5 November 2002, para 42
6
236
It was on the basis of these principles that the idea of what constitutes fairness in
the context of the plea bargain was then later expanded and developed upon.
7.0.2 What safeguards are in place to protect the defendant’s

right to a fair trial?
It was established that there are extensive rights set out in the domestic legislation
and constitutions of the countries analysed in this study. For the three member
states of the E.U. there is the additional provision of minimum standards set out in
the ECHR. Additionally there are the E.U. directives which in the spirit of mutual
trust and harmonisation seek to establish a common standard of protection for the
rights of the defendant in the trial.
It is important what type of trial process one conceives of because it impacts upon
the way in which the principle of equality of arms is conceived of as well as applied.
The ancient Roman principle of audi alteram parten which is widely accepted to be
the modern day foundation for the principle of equality of arms has two parts to it.
The first is that the court should be bias-free in substance and procedure. This is
supported by there being an independent and impartial judiciary in the first place.
Secondly, there is the right to an equal and effective access to the court.7 What is
significant about the audi alteram parten principle is that it provides that a person
hears both sides of the case because it is not fair to have one party unheard. This
is not just because the situation would be unfair but more importantly because a
mistake could be made. Within this is the inherent proposition that there should
be provisions in place which secure a fair trial for both of the parties. As long
as the judge is fair in their approach then it will be considered that both of the
parties will have had a fair trial. The fact that mistakes could be and are made
was illustrated by the study of Derven and Eakins where innocent students pleaded
guilty. They were also not provided with the dossier of the information against them
when reaching their decision to plead guilty or not.
Equality of arms only stretches so far as to give each party the reasonable opportu-
nity to present their case in court in conditions which do not place the other side
at a considerable disadvantage. If we were to apply this to the plea bargaining sit-
uation the fact that each party must be given a reasonable opportunity to present
7
237
their case is something which is forfeited by this practice. There is the mistaken
belief that procedural equality equates with actual and effective equality. This is
not the case. In order to establish that the principle of equality of arms has been
infringed the standard which must be reached is that of ’substantial disadvantage’.
The principle of equality of arms does indeed have several elements which must be
met, safeguards, so as to ensure the minimum standard are not slipped below. But
what was found in the case of plea bargaining was that because it did not fit within
the natural and traditional boundaries of a trial several of the safeguards were not
applicable to it.
7.0.3 What are those structures/practices which act as barriers

to access to justice?
The first such barrier that was identified was the institutional weaknesses and lack
of political will which serve to limit accessibility. In conjunction with this barrier
is the ineffective implementation of ECtHR decisions, or the incorrect interpreta-
tion of fundamental principles by the domestic courts. One such example is the
U.S. Supreme Court concerning the exact interpretation of the sixth amendment in
relation to access to counsel and its interplay with the right to a fair trial.
A second barrier to justice is the availability of legal aid at the domestic level.
Within the E.U. member states they are awarded the margin of appreciation when
it comes to the internal regulation of the appointment and allocation process. Not
a single country in the study had a legal aid system which functioned in such a
way that it would not be a barrier to justice. Two countries the United Kingdom
and Hungary stood out particularly for their legal provisions being far below par.
In the case of the United Kingdom it is a matter of balancing the tension between
the financial need for reforms and the loss of representation for certain groups of
people. In Hungary the concern with legal aid relates to the lack of impartiality in
the allocation process. In both scenarios defendant’s are opting for the plea bargain
due to financial constraints. It is important to note that this trend is not necessarily
because individuals want to but rather there is a lack of institutional frameworks to
provide the financial support for them to take their case to trial. As such the plea
bargain is the best viable option available for them sometimes.
The E. U., in recognising the need to work towards harmonising the access to justice
238
of citizens issued a roadmap. The E. U. adopted three directives in its roadmap.

The first two directives which have been are adopted are the, Directive on the right
to interpretation and translation in criminal proceedings8 and the Directive on the
right to information in criminal proceedings.9 The third Directive which has caused
some problems amongst the Member States when it comes to its adoption is the
Directive on rights of access to a lawyer in criminal proceedings. The U. K. has
all opted out of the latest Directive on the rights of access to a lawyer in criminal
proceedings. The reason that the U. K. has opted out of the Directive is because
of the ongoing cost cutting in the U. K. relating to the legal aid costs in the form
of the Legal Aid, Sentencing and Punishment of Offenders Act (clause 12). This
clause 12 concerns the opportunity to introduce at a later date secondary legislation
removing the automatic right of those arrested and in police custody to have access
to a lawyer at a police station. Currently everyone is entitled to free advice at the
police station during the interview in more serious cases.
7.0.4 Does the expedited form of justice that plea bargaining

offers, require a reconceptualisation of the right to a fair
trial?
This research question formed the heart of the thesis. It was around this ques-
tion that all of the other aspects of the research questions were informed. As the
research progressed it quickly became evident that the traditional picture of the
trial had evolved. It still existed but albeit in more than one form. This is a good
phenomenon as it shows that the law and justice are adapting to the times so as
to ensure that the procedure remain relevant and applicable. Invariably expedited
forms of justice do require a reconceptualisation of the way that the trial works.
In several of the countries observed plea bargaining had developed as an outsider
to the proceedings because of constitutional conflicts. Because of this fact several
reforms had to be undertaken so as to ensure compatibility or failing that judicial
ingenuity was employed.
Plea bargaining does have a place, an important role to play in our justice systems
8
Directive 2010/64/EU of the European Parliament and of the Council of 20 October 2010 on
the right to interpretation and translation in criminal proceedings
9
Directive 2012/13/EU of the European Parliament and of the Council of 22 May 2012 on the
right to information in criminal proceedings
239
but it must be invited in so that it can be better regulated and safeguards ensured
for the defendant. The plea bargain is forcing a rethinking of not necessarily the
format of the trial itself but the core jurisprudential concepts which form the basis
of the trial. In particular the pursuit of truth, the presumption of innocence and
the right to appeal. Each of these concepts plays an integral role in the trial process
and each has extensive protections to ensure that they are respected. In the context
of the plea bargain it was found that these three concepts are considered, wrongly,
to be on the periphery.
7.0.5 What is the role of plea bargaining within the modern

trial?
This question was posed more as to see if there is actually a place for it within our
trial systems. Unsurprisingly, the research revealed that plea bargaining does have
a role and an important one at that. There is an undeniable need for expedient
and efficient justice and plea bargaining is an excellent tool by which to achieve the
desired outcome. Despite this fact there is a need to approach its application with
caution.
This thesis has shown that fairness of the trial should encompass such elements
as the right to access legal counsel. Limited resources and the global economic
recession has meant that the indigent defendant has felt the negative repercussions,
particularly in situations where the guarantees such as the right to a fair trial have
been eroded in favour of expediting the legal process. Competing theories and
concepts of justice have been explored which expose the reality that the practice of
plea bargaining has far reaching inadequacies. Solutions to these grievances have
been explored and it has been shown that the conviction of the innocent is higher
in systems in which the presumption of innocence and the burden of proof are not
upheld. This factor has been recognised by the European Parliament and Council
in that they have proposed the directive on the presumption of innocence and the
right to be present at trial.
The role of plea bargaining within the modern trial has the function of challenging
the way in which view justice to be done. Its role if nothing else will be to push
the envelope concerning the debate about the direction of the modern trial. Plea
bargaining provides an excellent measurement by which to gauge the climate of
240
modern trials.
All the countries studied have the practice of plea bargaining as an integrated part
of the criminal procedure systems. Some benefits of plea bargaining include the
expedition of the trial; an increase in court efficiency and it also reduces the number
of prison sentences handed out. These benefits do not outweigh the pitfalls. The
fundamental problem with plea bargaining is the impact it has on the right to a
fair trial. Much has been said about its shortcomings with few effective suggested
solutions. Plea bargaining strongly impacts upon the presumption of innocence
and the equality of arms. The presumption of innocence is built upon the belief
that it is better that ten guilty people go free than having one innocent wrongfully
convicted. The discussion of the overall fairness of the trial is a pivotal factor
where the ECtHR used it as a means by which to determine adherence to the
procedural safeguards. . There has yet to be proper discussion of the use of waivers
of procedural safeguards as the ECtHR will not discuss the matter of compatibility
if it views the defendant made their decision voluntarily to accept a plea bargain.
This point leads to the fundamental case of Salduz v Turkey where it was deemed
necessary for the defendant to have an effective defence. The same terminology is
used in plea bargaining cases in the U.S. Despite this there has yet to be made a
coherent connection between the two practices. The right to an effective defence is
pivotal to the plea bargain and the right to a fair trial.
The truth is no longer central to the workings and conceptualisations of a fair and
just trial system, then what is? It could be suggested then that the phrase, “the
whole truth and nothing but the truth so help me God”, is rather an unachiev-
able state. The whole truth is a subjective state where one cannot really reach
an objective stance. As such the pursuit of justice is a fallacy behind which legal
practitioners and scholars have hidden. In reality they have been practicing a game
of “almost truth” or in the worst cases the denial of the pursuit of the truth and
justice altogether. This is being exposed via the plea bargaining model.
This thesis shows that the principle of participation has two interrelated conditions
of the right to notice and the right to be heard. According to the Article 6 case law,
the conclusion can be drawn that the procedural forms do not have to be exactly
identical in order for them to be considered procedurally fair. Procedural fairness
and cost requirements need to be balanced against each other in order for a fair
result to be reached. Legal representation should not sacrificed on the altar of costs
241
benefits. Participation in criminal trials must be meaningful as well as effective.

When discussing effective participation it is necessary to discuss the principle of
equality of arms. The ECtHR has developed this principle over the years to be
more expansive. Effective participation has a rich history in the case law of the
U.S. Supreme Court where the court has established that in the context of plea
bargaining the onus is upon the defendant to establish that the assistance they
received was ineffective. The defendant in plea bargaining experiences not only has
to prove ineffective assistance of counsel but also bears the reverse presumption of
innocence. Both of these elements and in particular the latter of the two seeks to
erode their fundamental rights. The ECtHR has yet to consider the presumption
of innocence in the context of the plea bargain relationship. This is in part due
to the fact that they will not consider a plea bargain where they can be satisfied
that the defendant has knowingly and voluntarily waived their right to a fair trial.
The ECtHR holds a similar position to that of Justice Scalia of the U.S. Supreme
Court, when if it can be established that the process was fair and the defendant
was awarded the opportunity the right to a fair trial they will not consider the plea
itself.
The principle of equality of arms encompasses wider expectations of what a defense
should be afforded both in preparation and duration of trial proceedings. Partic-
ipation, accuracy and efficiency are all key elements which have all developed out
of equality of arms. Effective participation is being eroded by the plea bargaining
practices and a new era is dawning whereby the face of the trial is shifting. The
E.U. is seeking to find solutions to redress these discrepancies especially the way that
the presumption of innocence in the plea bargaining relationship has been woefully
overlooked. It has become a legal black hole which results in legal uncertainty where
the defendant is presumed guilty rather than rather than enjoying the right to be
presumed innocent. It is the sad truth that some defendants plead guilty when they
are innocent or others may be guilty but not of the specific charge. This shift is
perceived as a necessary casualty of the efficient trial rather than a terrifying and
alarming problem. It is nonsensical to talk of the defendant having the right to be
presumed innocent because the plea bargain requires an admission of guilt. This
situation shows once more that the presumption of innocence only applies to the in
trial scenario.
The right to a legal defense is invariably connected with the right to access justice.
This is evidenced by the ECtHR ruling in Salduz v Turkey. The ECtHR has es-
242
7.1 Recommendations: The Way Forward and Beyond
tablished that the presence of a lawyer is vital in ensuring access to justice. The
lawyer acts as a conduit through which access to justice can be achieved. Necessity
is seen as the inevitable detention of the defendant. It is this fear of detention which
quashes challenges to the way in which the justice system is established. Giving
way to necessity is the most troubling phenomenon of the criminal procedure which
has been left hanging in the air in the context of plea bargaining. The defendant,
realising the limits of law to ensure their justice, looks for ways to limit the damage
by opting to use mechanisms which limit their right to a fair trial. These practices
invariably raise the question of what about the principle of equality of arms as the
bargaining position between the applicant and the State which is invariably even
more extreme.The ECtHR has yet to provide clear signposts as to what direction
the member states should be heading with the implementation of safeguards for
defendants in the plea bargaining process. In addition to the lack of clear signposts
the decision in Salduz v Turkey also needs to be clarified. There have arisen since
its ruling, inconsistent practices concerning the implementation of when and how an
individual should be informed of their right to access to counsel. The E.U. recognis-
ing that there is still a deficit in the provision of counsel issued in the remit of the
Stockholm Programme and its Roadmap the Letter of Rights which is a template
which can be used by the member states. The idea behind the Letter of Rights was
to create a unified document which could then be given to the individual in their
own language informing them of their rights. In principle the idea is to be lauded
in practice it has several shortcomings. These shortcomings are that because the
document is a template it does not specify what exactly should be included in the
letter. Also because there is not a fixed format it results in a lack of uniformity
in the information being provided to suspects and defendants. In addition to the
practical information the ECtHR also needs to ensure consistent application of its
principles across the member states by ensuring uniformity in its implementation.
7.1 Recommendations: The Way Forward and

Beyond
The practice of plea bargaining is here to stay and there is no indication that any
of the countries studied have plans to reduce its use within their systems. All of the
countries investigated have stated that the reason for the use of plea bargaining was
243
to ensure a more expedient and efficient criminal justice system. It is also evident
from the cases analysed that plea bargaining is not exempt from abuse. It can often
be manipulated to serve the interests of the criminal. The criminal defendant can
bargain for their justice reinforcing the standpoint of this thesis that the rich can
buy their justice. Alternatively, the prosecutor can use it as a tool to intimidate,
bully and coerce the defendant into giving them the desired result. Plea bargaining’s
strengths and weaknesses are well known and it would be acceptable to presume that
solutions to these problems would be easy to identify and rectify. This is not the
case. The use of plea bargaining has not featured in the ECtHR case law until April
2014 where it was only in the partly dissenting opinion of Judge Gyulumyan that
the possibility that plea bargaining could infringe Article 6 was considered.
The ECtHR, in this case, did not address the question of a plea bargain in respect
of the sentence alone and not pleading guilty. A distinction arises between pleading
guilty to the charges or where the bargain relates solely to the guilty plea. This
creates an uncertainty amongst the member states in the correct application of the
plea bargaining mechanism.
The following recommendations are proposed, based upon the research contained
within this thesis, as a means by which to direct the use of plea bargaining to
ensure the utmost protection of the defendant’s rights.
There is a need to keep a record of all of the negotiations between the prosecutor
and defendant. This is a record which will ensure that the terms of the agreement
are not deviated from without the express agreement of both of the parties. These
pre-trial negotiations must be accessible and a copy given to the court so that the
judge can also ascertain whether both sides are willing entered into the bargain.
This requirement for the recording of plea bargains will only be effective if there
are no procedural irregularities which form barriers to its realisation. This will re-
quire reforms in the legal culture of the practice of plea bargaining. In the U.S.A.
the American Bar Association encouraged the registration of plea bargains so as to
ensure ineffective assistance of counsel claims were avoided. This move for regis-
tration was motivated purely from the position that the courts wanted to reduce
the amount of unnecessary time spent on ineffective assistance of counsel claims.
Additionally, the registration was more of an act of awareness raising amongst the
judiciary and legal profession than act for protecting the fundamental rights of the
defendant. Similarly, the example of the U.K. shows that there is indeed a statutory
244
requirement to the write the plea down by the defence according to the Criminal
Justice Act 2003 Section 143(2). The Prosecution also has an obligation to write and
prepare a statement concerning the plea and sentence to be provided to the court
in order to assist them in the sentencing of the defendant. Again the provisions in
the U.K. pertain more to administrative ease rather than the safeguarding of the
procedural rights of the defendant.
In the case of Italy there is also a system of reporting plea bargains (this is conducted
by the defence) in situations where the prosecutor must justify their reason to reject
a defendant’s request for a party agreed sentence. This is then sent to the judge for
their consideration in the matter, The situation in Italy is the closest to providing
a means of checks of balances to protect the defendant from the arbitrary dismissal
by the prosecutor of a good plea bargain just because they do not like it.
Section 273(1)(a) of the German Criminal Procedure requires the fact that all ne-
gotiations before the trial are recorded. Both Hungary and Serbia require the doc-
umenting of the plea bargain so that the judge may be aware of the plea that was
made.
All of the above methods for documenting the plea bargain are on paper correct and
should be effective, however, the problem lies in the fact that the motivation is not
necessarily the protection of fundamental rights and safeguards.
The attitude of “take it or leave it” plea bargains creates a tension of coercion.
Too often the cases analysed were littered with instances of the defendant being
detained; in deliberately stressful conditions; not being informed of the plea bargain
on offer; lack of understanding of the other viable alternative options available to
them or because of the lack of sentencing guidelines a real uncertainty as to the
maximum imposable sentence. The prosecutor should not be allowed to threaten
the defendant with charges which are unsupported by prima facie evidence. The
fact that the prosecutor is and will always be in a more superior position is not
disputed. What is disputed is the unfettered control of this power.
This practice does not allow the defendant to assess the value of the evidence against
them and to mount a counter argument. An aspect which is integral to the equality
of arms. This is counter to the fairness requirement of the right to a fair trial in that
it has been established by the case law of the ECtHR that there is no safeguard if
there is only a mere possibility to consult the documents. In this instance, there is
not even a mere possibility to consult the documents containing the evidence. The
245
ability to consult the documents is likely to be an uphill struggle as the very purpose
of the plea bargain is to circumvent the disclosure procedure.
The fairness of the trial will be assessed by taking into consideration the proceed-
ings in their entirety. The ECtHR has stressed the importance of appearance in
the administration of justice. It is important that the fairness of the proceedings is
apparent. This element is currently not observed in plea bargaining as the bargain
process itself is not open to scrutiny. Additionally, the ECtHR holds the principle
of adversariality in high regard and in order to abide by this principle the member
states must ensure that there is an opportunity for both parties to have knowledge
of and comment on all of the evidence with a view to influencing the ECtHR’s de-
cision. The parties must be provided with a realistic opportunity of challenging the
evidence in satisfactory conditions. As the fairness of the proceedings are assessed in
their entirety an isolated irregularity may not be sufficient to render the proceedings
as a whole unfair. All of these aspects serve to create an intimidating environment
in which the defendant must make a decision this is often not helped by the lack of
willingness on the part of both the defendant and the prosecution to go to trial. In
the midst of this is the fact coercive techniques erode the presumption of equality
of arms principle. It is vital for the C.o.E. to reinforce the sanctity of these princi-
ples. Initiatives such as the proposed directive on the presumption of innocence are
welcomed.
In several of the jurisdictions discussed the defendant, as part of accepting the plea
bargain, was required to revoke their right to appeal. This practice removes the
possibility of judicial supervision of the fairness of the plea bargain. The require-
ment of waiving the right to appeal is also in part to do with the presumption of
innocence. Once the defendant has pleaded guilt in relation to the charges against
them it becomes very difficult for them then to perform the psychological gymnastics
required to ignore the fact that they are appealing against their admission of guilt.
Irrespective of this awkward positioning the right to appeal should not be used as
a bartering chip. The significance of the right to appeal should not be underesti-
mated. This works to reinforce the importance of safeguards being set in place so
as to chart the process of the plea bargain from its inception to its acceptance.
There is also a further dimension to plea bargaining that has been left unaddressed.
It concerns the situation when the defendant agrees to enter into a plea bargain with
the prosecution concerning the sentence but does not want too plead guilty to the
246
charges. This occurred in the West Memphis Three case and in the U.S. it resulted in
the phenomenon of the Alford pleas. This issue was not address fully by the ECtHR
in the case of Natsvlishivili and Togonidze v. Georgia. In these circumstances it
becomes even more important that the safeguards for the defendant ensure that
basis for the charges against the defendant are well founded.
It is necessary to re-evaluate the current mechanisms in place which allow the defen-
dant to waive their right to appeal. The presumption of innocence is being eroded
on a wave of judicial efficiency reforms and equality of arms, the central component
for justice, needs strong implementation to save it from the brink of extinction.
247
Bibliography
Alge, D. “Negotiated Plea Agreements in Cases of Serious and Complex Fraud in

England and Wales: A New Conceptualisation of Plea Bargaining?” In: Web. J.C.L.I.
19 (2013). url: http://webjcli.org/article/view/203.
Alkon, C. “Plea Bargaining as a Legal Transplant: A Good Idea for Troubled Crim-
inal Justice Systems?” In: Transnat’l L. & Contemp. Probs 19 (2010), pp. 355–418.
Ashworth, A. “Self-incrimination In European Human Rights Law - a Pregnant

Pragmatism?” In: Cardozo L. Rev. (2008).
Bagaric, M. “The Right to an Impartial Hearing Trumps the Social Imperative of

Bringing Accused to Trial Even ’Down Under’”. In: Crim. Law and Philos 4 (2010),
pp. 321–339.
Bagirov, A. R. O. Support to the anti-corruption strategy of Azerbaijan (AZPAC)

Techical paper on Plea Bargaining and issues related to its implementation in Azer-
baijan. Tech. rep. Council of Europe, 2008.
Baradaran, S. “Restoring the Presumption of Innocence”. In: Ohio St. L.J. 72 (4

2011), pp. 724–776.
Bárd, K. “Access to Legal Aid for Indigent Criminal Defendants in Central and
Eastern Europe”. In: Parker Sch. J. E. Eur. L. 5.1-2 (1998), pp. 1–224.
— Fairness in Criminal Proceedings Artice Six of the European Human Rights Con-
vention in a Comparative Perspective. Közlöny Budapest, 2008.
248
Bibliography
Bassiouni, M. C. “Human Rights in the Context of Criminal Justice: Identifying

International Procedural Protections and Equivalent Protections in National Con-
stitutions”. In: Duke J. Comp. & Int’l L. 3 (1993), pp. 235–297.
Bentham, J. In: Principles of Judicial Procedure 169 (1829).
Bentley, D. English Criminal Justice in the Nineteenth Century. Hambledon Press,

1998.
Bingham, T. The Rule of Law. Penguin Books, 2011.
Blumberg, A. S. “The Practice of Law as Confidence Game: Organizational Co-

optation of a Profession”. In: Law & Soc’y Rev. 15:1 (1967), p. 20.
Blutman, L. “Az ártatlanság vélelmének hatóköre az európai alapjogokban”. In:

Acta Juridica Et Politica Tomus LIII. Fasciculus 5 (1998), pp. 59–76.
Bose, M. “Harmonizing Procedural Rights Indirectly: The Framework Decision on

Trials in Absentia”. In: N. C. J. Int’L & Com. Reg. 37 (2011), pp. 489–510.
Bowen, D. “Calling your Bluff: How Prosecutors and Defense Attorneys Adapt Pleas
Bargaining Strategies to Increased Formalization”. In: J. Q. 26.1 (2009), pp. 2–29.
Breed, A. F., ed. Institute of Judicial Administration American Bar Association

Juvenile Justice Standards Standards Relating to Dispositional Procedures. American
Bar Association. 1979.
Bright, S. B. and S. M. Sanneh. “Fifty Years of Defiance and Resistance after Gideon
v Wainwright”. In: Yale L. J. 122 (2013), pp. 1–20.
Bussmann, Kai-D. Die Entdeckung der Informalitat: uber Aushandlungen in Strfver-

fahren und inhre juristische konstrucktion (baden Baden: Nomos Verlagsgesellschaft).
Nomos; 1991.
Cappelletti, M. and J. Gordley. Toward Equal Justice a Comparative Study of Legal

Aid in Modern Societies: Text and Materials. Studies in comparative law. A. Giuffre,
1981. url: http://books.google.hu/books?id=JOTDkQEACAAJ.
249
Bibliography
Carduck, V. J. “Quo Vadis, German Criminal Justice System? The Future of Plea
Bargaining in Germany”. In: Warwick School of Law Research Paper No. 2013-17
(Special Plea Bargaining Edition) (2013), pp. 1–34.
Carrara, F. Opuscoli do Diritto Criminali. 5th. Vol. ii. Lucca, Tip. Giusti, 1877.
Church Jr, T. W. “In Defense of "Bargain Justice"”. In: Law & Soc’y Rev. Vol. 13,2
(1979), pp. 509–525.
Cole, G. F. The American System Of Criminal Justice. Duxbury Press, 1979.
Constitutional Affairs, Great Britain: Department for. A Fairer Deal for Legal Aid.
Cm (Series) (Great Britain. Parliament). Stationery Office, 2005. isbn: 9780101659123.
url: http://books.google.hu/books?id=zslCrKAO4noC.
Damaska, M. R. “Truth in Adjudication”. In: Hasting L. J. 49 (Jan. 1998), pp. 289–

308.
DeKay, M. “The difference between Blackstone-like error ratios and probalistic stan-
dards of proof.” In: Law Soc. Inq. 21 (1996), p. 95.
Dervan, L. E. and V. A. Edkins. “The Innocent Defendant’s Dilemma: An Innovative

Empirical Study of Plea Bargaining’s Innocence Project”. In: J. Crim. Law Criminol.
103.1 (2013), pp. 1–48.
Dijk, P. van et al. Theory and Practice of the European Convention on Human
Rights. Kluwer Law International, 1998. isbn: 9789041105981. url: http://books.
google.hu/books?id=SZnzQ0fHuAUC.
Durocher, C. “Are We Closer to Fulfilling Gideon’s Promise? The Effects of the

Supreme Court’s “Right-to-Counsel Term””. In: Issue Brief American Constitution
Society for Law and Policy 7 (2013), pp. 103–118.
Esmein, A. A History of Continental Criminal Procedure with Special Reference to

France. Ed. by 1913 trans J Simpson Boston Mass Little Brown & Co. Union, NJ,
The Lawbook Exchange, 2000.
250
Bibliography
Fedorova, M. The Principle of Equality of Arms in International Criminal Proceed-

ings. Intersentia, 2012.
Feeley, M. M. “Two Models of the Criminal Justice System: An Organizational

Perspective”. In: Law & Soc’y Rev. 7 (1973), pp. 407–426.
Fenyvesi, Cs. “Constitutional principles in the light of the defensive position”. In:
Jogelmeleti Szemle 1 (2002).
Findley, K. A. “Adversarial Inquisitions: Rethinking the Search for the Truth”. In:
N.Y.U. L. Rev. 56 (2011/12), pp. 911–941.
— “Towards a new paradigm of criminal justice: How the Innocence Movement

Merges Crime Control and Due Process”. In: Tex. Tech L. Rev. 41 (2009), pp. 1–42.
Fox-Decent, E. “Is The Rule Of Law Really Indifferent To Human Rights?” In: Law
Philos. 27 (2008), pp. 533–581.
Glaser, J. Handbuch des Straftprozesses. Leipzig, Duncker & Humbolt, 1883.
Gray, A. “Constitutionally Protecting the Presumption of Innocence”. In: Tas. Univ.

L. R. 31 No 1 (2012), pp. 131–152.
Harlow, C. “The EU and Human Rights”. In: ed. by P. Alston, M. Bustelo, and J.
Heenan. Oxford University Press, 1999. Chap. Access to Justice as a human right:
The European Convention and European Union, pp. 187–213.
Hart, H. L. A. “Are There Any Natural Rights?” In: Philos. Rev. 64.2 (1955),
pp. 175–191.
Hélie, F. Traité de l’instruction criminelle: ou théorie du Code d’instruction crim-

inelle. Traité de l’instruction criminelle: ou théorie du Code d’instruction criminelle
v. 5. H. Plon, 1867. url: http://books.google.hu/books?id=lGcOAAAAYAAJ.
Herke, Cs. Megállapodások A Bűntetőperben. Szerző, 2008.
251
Bibliography
Herke, Cs. and Cs. D. Toth. “The prohibition of reformation in peius in the light of
the principle of fair procedure”. In: Int. J. Bus. Soc. Res. 3.3 (2013), pp. 92–98.
Hinarejos, A. “Intergration in Criminal Matters and the Role of the Court of Jus-
tice”. In: Eur. Law Rev. 36 (2011), pp. 420–430.
Hodgson, J. S. “The Future of the Adversarial Criminal Justice in 21st Century

Britian”. In: N.C. J. Int’l L. & Com. Reg. 35 (2010), p. 320.
Hoglar, R. L. “Conrad, Kafka and the Criminal Justice System”. In: 3 J. Contemp.
L. 75 (1977).
Hostettler, J. The Politics of Criminal Law Reform in the Nineteenth Century.

Chichester, Barry Rose, 1992.
Iovene, F. “Plea Bargaining and Abbreviated Trial in Italy”. In: Warwick School
of Law Research Paper No. 2013/11(Special Plea Bargaining Edition) 11 (2013),
pp. 1–14.
Jackson, J. “Autonomy and Accuracy in the Development of Fair Trial Rights”. In:
UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper
No. 09/2009 (2008), pp. 1–19.
Jackson, J. and S. J. Summers. The Internalisation of Criminal Evidence Beyond

the Common Law and Civil Law Traditions. Cambridge University Press, 2012.
Jackson, J. D. “The Effect of Human Rights on Criminal Evidentiary Processes:

Towards Convergence, Divergence or Realignment”. In: M. L. R. 68 (2005), p. 737.
Karich, J. S. The Constitutional Divide: The United States and Europe’s Diverging
Interpretations of Equality under the Law applied to Civil Cases involving Funda-
mental Rights. Tech. rep. Institute for Cultural Diplomacy, 2010, pp. 1–16.
252
Bibliography
Kerezsi, Klára. “Costs of Alternative Sanctions in Hungary”. In: European Journal

on Criminal Policy and Research 6 (1998), pp. 561–572.
King, N. J. “Lafler v. Cooper and AEDPA”. In: Yale L. J. Online 29 (2012), p. 122.
Király, T. Büntetőeljárási jog. Osiris Kiadó, 2008.
Király, T. “The Defence and the Defender in Criminal Cases”. In: KJK, Budapest
(1962), pp. 11–48.
Koppen, P. J. van, ed. Adversarial versus Inquistorial Justice. Springer Science+Business

Media New York, 2003.
Langbein, J. H. “Torture and Plea Bargaining”. In: U. Chicago Law Rev. 46, No.1
(Autumn, 1978), pp. 3–22.
Langer, M. “From Legal Transplants to Legal Translations: The Globalization of

Plea Bargaining and the Americanization Thesis in Criminal Procedure”. In: Harv.
Int. Law J. 45.1 (2004), pp. 1–64.
Laudan, L. “The Presumption of Innocence: Materail or Probatory?” In: U. T. L.

Sch. (2008), pp. 1–36.
— Truth, Error and Criminal Law: An Essay in Legal Epistemology. Cambridge

University Press, 2006.
Lawrence, J. et al. “Hardcore bargains: What could plea bargaining offer the UK in
criminal cartel cases?” In: Comp Law (2008), pp. 17–42.
Legrand, Pierre. “European Legal Systems are not Converging”. In: International
and Comparative Law Quarterly 45, Issue 01 (January 1996), pp. 52–81.
Lippke, R. L. “The Ethics of Plea Bargaining”. In: ed. by R. L. Lippke. Oxford

University Press, 2011. Chap. Introduction, pp. 1–9.
Lynch, T. “The Case Against Plea Bargaining”. In: Regulation 26 (2003), pp. 24–27.
253
Bibliography
Mahoney, P. “Right to a Fair Trial in Criminal Matters under Article 6 E.C.H.R.”

In: JSIL 4.2 (2004), pp. 107–129.
McKay, C. S. “Recent Decision Constitutional Law—the Pleabargaining Process—

mr. Counsel, Please Bargain Effectively For Your Client’s Sixth amendment Rights,
Otherwise The Trial Court Will Be Forced To Reoffer The Plea Deal and Then
Exercise Discretion In Resentencing”. In: Miss. Law J. 82.3 (2013), pp. 731–750.
Moorhead, R. and P. Pleasance. “After Universalism:Re-engineering access to jus-

tice”. In: ed. by R. Moorhead and Pascoe Pleasence. Blackwell Publishing, 2003.
Chap. Access to Justice after Universalism: Introduction, pp. 1–9.
Natali, L. M. and E. D. Ohlbaum. In: International Criminal Procedure Symposium.

Ed. by J. S. Greenberg. Temp. L. Rev., 1989. Chap. Redrafting the due proces model:
the preventive detention blue print. P. 1236.
Orwell, G. England Your England. Secker and Warburg. London., February 19, 1941.
Packer, H. L. “Two Models Of The Criminal Process”. In: U. Penn. L. Rev. 113
(1964), pp. 1–68.
Pardavi, M. The Legal Profession in Hungary. ODIHR, 2008.
Puyenbroeck, L. van and G. Vermeulen. “Towards Minimum Procedural Guarantees

For The Defence In Criminal Proceedings In The Eu”. In: ICLQ 60 (2011), pp. 1017–
1038.
Quintard-Morenas, F. “The Presumption of Innocence in the French and Anglo-

American Legal Traditions”. In: Am. J. Comp. L. 58 (2010), pp. 107–149.
254
Bibliography
Rauxloh, R. E. “Formalisation of Plea Bargaining in Germany - Will the New Leg-

islation Be Able to Square the Circle?” In: Fordham Int’l L. J. 34 (2010), pp. 296–
331.
— Plea Bargaining in National and International Law. Routledge, 2012.
Rawls, J. A Theory of Justice. Cambridge, MA: Belknap Press of Harvard University

Press, 1971.
— A Theory of Justice. Oxford University Press, 2000.
Raz, J. In: Authority of Law; Essays on Law and Morality. Oxford Clarendon Press,
1979. Chap. The Rule of Law and Its Virtue, p. 211.
Rhode, D. L. “Access to Justice”. In: Fordham L. Rev. (2001), pp. 1785–1819.
Roach, K. “Four Models of the Criminal Process”. In: J. Crim. L. & Criminology
89 Issue 2 Winter (1999), pp. 671–716.
Róth, E. “Prosecutorial Discretion and its Limits”. In: Acta Juridica Hungarica 43,
Nos 3-4 (2002), pp. 387–399.
— “The Prosecution Service Function within the Hungarian Criminal Justice Sys-
tem”. In: Eur J Crim Policy Res 14 (2008), pp. 289–309.
Sanders, A. “Core Values, the Magistracy and the Auld Report’”. In: 29 J. of Law
and Society (2002), p. 327.
Sen, A. “What Do We Want from a Theory of Justice?” In: The Journal of Philos-
ophy 103 (5 2006), pp. 215–238.
Sidhu, O. The Concept of Equality of Arms in Criminal Proceedings under Article

6 of the European Convention on Human Rights. Intersentia, 2014.
Skolnick, J. H. Justice Without Trial: Law Enforcement in Democratic Society. Quid

Pro, LLC, 2011.
Solum, L. B. “Procedural Justice”. In: S. Cal. L. Rev. 78 (2004), pp. 181–321.
255
Bibliography
Sommerland, H. “Some Reflections on the Relationship between Citizeship, Access

to Justice, and the Reform of Legal Aid”. In: J. Law & Soc. 31, Number 3 (2004),
pp. 345–68.
Stephen, J. F. A History of the Criminal Law of England. Macmillian, 1883.
Summers, S. J. Fair Trials The European Criminal Procedural Tradition and the
European Court of Human Rights. Hart Publishing, 2007.
Szomora, K. Karsai & Zs. Criminal Law in Hungary. Wolters Kluwer Law & Busi-
ness, 2010.
Tadros, V. “Rethinking the presumption of innocence”. In: Crim. L. & Philos 1

(2007), pp. 193–213.
Thayer, James Bradley. “The Presumption of Innocence in Criminal Cases”. In: Yale
L. J. Vol. 6, No. 4 (1897), pp. 185–212.
Trechsel, S. “The Significance of International Human Rights for Criminal Proce-

dure”. In: N, T, U, L, Rev, 6.1 (2011), p. 177.
— “Why Must Trials be Fair?” In: Isr. L. Rev. 1997 (31/ 1-3), pp. 95–119.
Tucker, A. “Scarce Justice: The Accuracy, Scope, And Depth Of Justice”. In: Polit.
Philos. & Econ. 11.1 (2012), pp. 76–96.
Turner, J. I. “Prosecutors and Bargaining in Weak Cases: A Comparative View”. In:

SMU Dedman School of Law Legal Studies Research Paper No. 87. (2011), pp. 1–13.
Uzelac, A. and B. Preloznjak. “The Development of Legal Aid Systems in the West-
ern Balkans. A Study of Controversial Reforms in Croatia and Serbia”. In: Kritisk
Juss 38.3-4 (2012), pp. 261–387.
256
Bibliography
Valentini, L. “A Paradigm Shift in Theorizing about Justice? A Critique of Sen”.

In: CSSJ Working Paper Series SJ011 (2010), pp. 2–14.
Vargha, J. Die Verteidigung in Strafsachen. Vienna, Manz’sche k k Hof-Verlag und

Univ Buchhandlung, 1879.
Vitkauska, D. and G. Dikov. Protecting the right to a fair trial under the European
Convention on Human Rights Council of Europe human rights handbook. Council of
Europe Handbooks 1st Printing, 2012.
Wasek-Wiaderek, M. The principle of "equality of arms" in criminal procedure under

Article 6 of the European Convention on Human Rights and its functions in criminal
justice of selected European countries A comparative view. Leuven University Press,
2000.
Weigend, T. “Crime, Procedure and Evidence in a Comparative and International

Context Essays in honour of Professor Mirjan Damaska”. In: ed. by Maximo Langer
& Peter Tillers John Jackson. Hart Publishing, 2008. Chap. The Decay of the In-
quistorial Ideal: Plea Bargaining Invades German Criminal Procedure, pp. 39–64.
— “Is the Criminal Process About Truth? German Perspective”. In: Harv. L. &
Pub. Pol’y 26 (Winter 2003), pp. 157–173.
Wesslau, E. “Konsensprinzip als Leitidee des Strafverfahrens”. In: N. J. W. 1 (2007).
Zsanett, F. A Büntető Tárgyalási Rendszerek Sajátosságai És A Büntető Eljárás

Hatékonysága. Ed. by E. Bócz, P. Hack, and Cs. Herke. HVG-ORAC Lap-és Könyvki-
adó Kft, 2012.
257
List of Cases
List of Cases
A
A v. SSHD [2004] UKHL 56
Argersinger v. Hamlin, 407 U. S. 25 (1972)
Artico v. Italy [1980] ECHR 6694/74
Attorney General’s Reference No 4 of 2002 [2004] UKHL 43.
B
Bell v. Wolfish 441 U. S. 520 (1979)
Belziuk v. Poland, judgment of 25 Mar 1998, Reports 1998-II, 338, (2000) 30
EHRR 614
Benham v. U. K. , Judgment of 10 June 1996, Reports 1996-III
Betts v. Brady, 316 U. S. 455 (1942)
Brady v. United States, 397 U.S. 742 (1970)
Brown v. Stott [2003] 1 AC 681at para 106
Bula Ltd. et al. v. Tara Mines Ltd., 4 I. R. 412, 441(2000)
BverfG Judgment of 27th of January 1987 and BGHSt 43, 195 (F.R.G.) and BGH
Judgment of June 10, 1998
C
Cadder v Her Majesty’s Advocate [2010] UKSC 43
Coffin v. United States 156 U. S. 432; 15 S. Ct. 394
Colozza v. Italy Judgment of 12 Feb 1985, Series A no 89, (1985) 7 EHRR 516
Coy v. Iowa 487 U. S. 1012 (1988) No. 86-6757
Croissant v. Germany 1990 [1992] ECHR 13611/88
D
Deweer v. Belgium, Application No. 6903/75, Judgment, Strasbourg, 27 February
1980
Dietrich v. R, [1992] HCA 57, [3]; (1992) 177 CLR 292
Douglas v. California, 372, U. S. 353 (1963)
DPP v White [2014] IESC 17
Drumgo v. The People (1973) 106 Cal. Rptr. 631, 94.
E
Estelle v. Williams, 425 U. S. 501 st 503 (1976)
258
List of Cases
G
Gideon v Wainwright, 372 U. S. 335 (1963)
Goddi v. Italy Judgment of 9 Apr 1984, Series A no 76, (1984) 6 EHRR 457
Goodyear [2005] EWCA Crim 888, [2006] 1 Cr App R (S) 6
H
Her Majesty’s Advocate v P [2011] UKSC 44
Hill v Lockhart U.S. 60
Hopfinger v. Austria,Application No. 524/59, report of 23 November 1962
I
Isgró v. Italy, Application No, 1139/85, Judgment,Strasbourg, 19 Feb 1991
L
Lafler v Cooper, No. 10-209 (U.S. Mar. 21, 2012)
Lavery v. The Member In Charge, Carrickmacross Garda Station [1999] IESC 29;
[1999] 2 IR 390 (23rd February, 1999)
M
Maryland v. Craig (89-478), 497 U. S. 836 (1990)
Missouri v Frye, No. 10-444 (U.S. Mar. 21, 2012)
Monnell and Morris v. U. K., Application No. 9562/81 and 9818/82, Judgment,
Strasbourg, 2 March 1987
Montejo v. Louisiana, 556 U. S. 778, 786
Murray v. U. K. Judgment of 8 Feb 1996, Reports 1996-I, 30, (1996) 22 EHRR 29
at para 63
N
North Carolina v. Alford, 400 U.S. 25 (1970)
P
Padilla v Kentucky, 559, U.S. 2010
Pataki and Dunshrin v. Austria Application No. 596/59 and 789/60, report of 28
March 1963
Powell v. Alabama, 287 U. S. 45, 68-69 (1932)
Q
Quaranta v Switzerland, Judgment of 23 April 1991, Series A, No 205
259
List of Cases
R
R v Goodyear [2005] EWCA Crim 888
R v Sussex Justices, Ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233)
R v. Davis, [2008] UKHL 36, (HL) [26 (2)]
R v. Jago (1989) 168 C. L. R., 1
R v. Simon Roland Langridge, [2010] EWCA Crim 2055
R. v. Deputy Industrial Injuries Commissioner ex parte Moore (1965) 1QB 450,
488
R. v. Turner (1970) 54 CR App R 352
S
Scott v Illinois, 440 U. S. 367 (1979)
Strickland v Washington, 466 U. S. 668 (1984)
U
U. S. v. Agurs, United States Supreme Court, 427 U. S. 97 (1976)
U.S. v. Tucker 249 F.R.D. 58, S. D. N. Y., 2008, February 07, 2008
United States Supreme Court, 412 U. S. 470, 474 (1973)
United States v Turkish, 623 F.2d 769, 774-775 (2nd Cir. 1980)
United States v. Garsson 291 Fed. 646, 649 (S. D. N. Y. 1923)
United States v. Wade, 388 U. S. 218, 226 (1967)
W
Wardius v. Oregon 412 U. S. 470, 474 (1973)
Weatherford v. Bursey, 29 ,U. S. 545, 559 (1977)
Williams v. Florida 399 U. S. 78, 82 (1970)
Woolmington v. Director of Public Prosecution, [1935], UKHL
260
List of ECtHR Cases
List of ECtHR Cases

A
A. B. v. Hungary, Application No. 33292/09, Judgment, Strasbourg, 16 April 2013
A. T. v. Luxembourg, Application No. 30460/13
Airey v. Ireland Application No. 6289/73, Judgment, Strasbourg, 9 October 1979
Al-Khawaja and Tahery v. U. K., Application No. 22228/06, Judgment, Strasbourg,
15 December 2011
Alimena v. Italy, Application No. 11910/85, Judgment, Strasbourg, 19 February
1991
Artico v. Italy, Application No. 6694/74, Judgment, Strasbourg, 13 May 1980
B
Baksza v. Hungary Application no. 59196/08, Judgment, Strasbourg, 23 April 2013
Belziuk v Poland, Application Number 23103/93, Judgment of 25 March 1998, par
39
Borgers v. Belgium Application No. 12005/86, Judgment, Strasbourg, 30 October
1991
Brandsetter v. Austria, Application No. 1170/84, 12876/87, 13468/87, Judgment,
Strasbourg, 28 August 1991
Bulut v. Austria, 1996, Eur. Ct. H. R., 10
C
Can v Austri 8 Eur. Ct. H.R. (ser. A) 14 (1986)
D
Dayanan v Turkey, Application No. 7377/03, Judgment, Strasbourg, 13 October
2009 (FINAL 13/01/2010)
Delcourt v. Belgium Application No. 2689/65, Judgment, Strasbourg of 17 January
1970
Dermanovic v. Serbia Application No. 48497/06, Judgment, Strasbourg, 23 Febru-
ary 2010
Dombo Beher B. V. Application No. 14448/88, Judgment, Strasbourg, 27 October
1993
DPP v Gormley [2014] IESC 17
E
Eckle v. Germany Application No. 8130/78, Judgment of 15 July 1982 §§52-53
261
List of ECtHR Cases
F
Foucher v. France, Application No. 22209/93, Judgment, Strasbourg, 18 March
1997
Freixas v. Spain [2000] ECHR 53590/99
G
Garcia Alva v. Germany, Application No. 23541/94. Judgment Strasbourg, 13,
February 2001
Golder v. U. K., Application No. 4451/70, Judgment, Strasbourg, 21 February 1975
Gorraiz Lizzarraga and others v. Spain, Application No. 62543/00, Judgment,
Strausburg, 27 April 2004, par 56
H
Hadjianastassiou v. Greece, Application No. 12945/87, Judgment, Strasbourg, 16
December 1992
Hagyó v. Hungary, Application No. 52624/10, Judgment, Strasbourg,23 April 2013
I
Imbrioscia v Switzerland, Application No. 13972/88,Judgment, Strasbourg, 24
November 1993
J
Jespers v. Belgium, Application No. 8403/78, Commission’s report, 14 December
1981
K
Kremzow v. Austria Application No. 12350/86, Judgment, Strasbourg, 21 July
September
Kreuz v. Poland, Application No. 28249/95, Judgment, Strasbourg, 19 June 2001
L
Lamy v. Belgium, Application No. 10444/83, Judgment ,Strasbourg, 30 March
1989
Lanz v. Austri, Application Number 24430/94, Judgment of 31 January 2002, par
58
Lanz v. Austria, App. No. 24430/94 ¶ 57, Eur. Ct. H. R. (2002)
Lietzow v. Germany Application No. 24479/94, 13, February 2001, para 41.
262
List of ECtHR Cases
M
Maline v. France (no.2) App. No. 18978/91, Judgement of 26 September 1996, par.
43
N
Natasvlishvili and Togonidze v. Georgia, Application No. 9043/05, Judgment,
Strasbourg, 29 April 2014
O
Ocalan v. Turkey, App. No. 46221/99 ¶ 159, Eur. Ct. H. R. (2005)
Osvath v. Hungary Application No. 20723/02, Judgment, Strasbourg, 5 July 2005
P
Pakelli v. Germany, Application No. 8398/78, Judgment, Strasbourg, 25 April 1983
Panovitz v. Cyprus, Application No. 4268/04 (First Section) 11th December 2008
Papon v. France, Application No. 54210/00, Judgment, Strasbourg, 25 July 2002,
§§90-100
Philis v Greece, Application No. 12750/87; 13780/88; 14003/88, Judgment, Stras-
bourg, 27 August 1991
Pishchalnikov v Russia, Application no. 7025/04, Judgment, Strasbourg, 24 Septem-
ber 2009 (FINAL 24/12/2009)
Pishchalnikov v. Russia, Application No. 7025/02, Judgment, Strasbourg, 24
September 2009, para 78
Poitrimol v France, Application No. 14032/88, Judgment, Strasbourg, 23 November
Posokhov v. Russia, Application No 63486/00, Judgment, Strasbourg,12 March
2003
R
Rowe and Davis v United Kingdom, Application No. 28901/95, Judgment, Stras-
bourg,16 February 2000
S
Salduz v. Turkey Application No. 36391/02, Judgment, Strasbourg, 27 November
2008
Schenk v. Switzerland, Application No., 10862/84, Judgment, Strasbourg, 12 July
1988, Series A Number 140
Schops v. Germany Application No. 25116/94, Judgment, Strasbourg, 13, February
2001
263
List of ECtHR Cases
T
Thorgeir Thorgeirson v. Iceland, Applications No. 13778/88 Judgment, Strasbourg,
25 June 1992
Tibor Cierny v Slovakia, Application No. 6177/2010
V
Van Geyseghem v Belgium 1999-II Eur. Ct. H. R. 128, 145
Van Mechelen v. Netherlands, Application No. 21363/93, 21364/93, 21427/93,
22056/93, Judgment of 23 April 1997
Vrencev v. Serbia, Application No.2361/05, Judgment, Strasbourg, 23 September
2008
X
X. Y. v. Hungary Application No. 43888/08, Judgment Strasbourg, 19 March 2013
264

Plea Bargaining Comparative

Uploaded by

Copyright:

Available Formats

Plea Bargaining Comparative

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Plea Bargaining Comparative

Uploaded by

Copyright:

Available Formats

View metadata, citation and similar papers at core.ac.

uk brought to you by CORE

Samantha Joy Cheesman

Faculty of Law and Political Science

Supervisor: Prof. Dr. Badó Attila

If we do not maintain justice, justice will not maintain us. - Francis

2 Fairness: The Right to a Fair Trial 12

5 Plea Bargaining: the pursuit of justice? 131

6 Plea Bargaining: the Benefits as well as the Pitfalls 157

7 Conclusions and recommendations 234

1.1 The Research Question

1.1.1 Positioning of the research

1.1.2 Purpose of the research

1.1.3 Research design and Methodology of the research

The research was conducted by predominantly considering primary sources such as

1.1.4 Structure of the thesis

U. S. Supreme Court’s and the ECtHR’s interpretation of effective defence as well

2.1 The Right to a Fair Trial

“If, in order to do justice, some adaptation of ordinary procedure is called

a) to be informed promptly, in a language which he understands and in

access counsel in criminal proceedings and is important because it reinforces the

The trend of the trial procedure in the various European countries is

argument in the thesis: the European Court of Human Rights equates

2.3 Due Process

It is a generally agreed principle that when counsel is awarded to an individual who

2.3.1 Packer’s Criminal procedure models

"function largely as hollow symbols of fairness or at best as luxuries or reserves to

2.4 The historical origins of the criminal procedural

It is important to realise that, despite the varying practices of adhering to human

2.4.0.1 The historical development in Europe of the rights of the defence

2.5 A Theory of Justice

The transcendental approach, to understanding justice, identifies the principles

2.6 Rights for all?

ECHR.118 It is important to consider the jurisprudence developed by the ECtHR

understand the need to reformulate fairness in the plea bargaining relationship, it

“Justice must not only be done, it must also be seen to be done ”1

3.1 Equality of Arms

highlighted that, “Article 6 in principle requires the assistance of a lawyer in the

3.2 The development of the principle of equality of

3.3 The meaning of equality within equality of arms

mative significance and a theory of justice cannot be explained without

Dombo Beheer BV v. Netherlands (1993) 18 EHRR 213

3.4 The Belgian Cases: development of the equality

3.4.1 Jespers v. Belgium: case analysis

central to the equality of arms. It is to this procedural relationship that we now

3.4.2 Lamy v. Belgium: case analysis

3.5 Equality of arms in the U. K.

3.6 The U. S. situation: The development of equality

poor. It also created an uneven shift in the balance of proportional representation.

that there was no overriding constitutional right to discovery in a criminal trial.

for the defendant.

3.7 Equality of arms in Germany

of a relationship of confidence between lawyer and client, this right can-

as a breach of the equality requirement.”106

3.8 Italy’s development of the principle of equality of

Summers argues that if the right to be heard is to be considered as part of the

3.9 Hungary and the development of the principle of

3.10 Serbian approaches to the principle of equality

The Serbian Constitution (adopted on the 28th/29th of October 2006) provides in

(1) Everyone is guaranteed right to legal assistance under conditions