Legislation should be introduced to allow for plea-bargaining as part of the criminal justice system, a conference of prosecutors has been told.
The first conference of those involved in the prosecution of offenders took place in Dublin on Saturday, hosted by the Director of Public Prosecutions, Mr James Hamilton. As well as staff from his office and that of the Chief State Solicitor, people from State Solicitors' offices around the State attended, along with barristers and some members of the judiciary.
Mr Barry Galvin of the Criminal Assets Bureau said plea-bargaining saved court time. It was also attractive from the point of view of certainty, in that the wide variation in sentencing for a particular crime was removed from the equation.
The accused should be able to know, at least within limits, what sentence he was going to get if he pleaded guilty. The prosecution and defence could meet and agree on a sentence, as permitted in the American system. There is then a sentencing hearing, at which the facts of the case and the agreed sentence are put to the judge. Mr Galvin said he did not see any constitutional difficulties with such a system, as it left the final decision on sentence to a judge.
While not wishing to denigrate any member of the legal profession, he said that it was suggested that one of the reasons for the lack of guilty pleas at an early stage was the smallness of the fees payable to solicitor and counsel at that stage. "I believe that not to discourage any early pleas the full case fees should be paid at an early stage so that advice on a plea will be freely given," he said.
The paper of Mr Peter Charlton SC, who opposed the idea of plea-bargaining, was not released to the press, but it is understood that he said plea-bargaining ran counter to the provision of the Constitution that justice be administered in public. It undermined the presumption of innocence, which was the very basis of the manner in which law was administered in Ireland.
Respect for the rule of law and the rights of the individual were best guaranteed by maintaining the independence of the prosecutor, Mr James Hamilton told the conference.
This included independence from political pressure and political decision-making. It also included the independence of the prosecutor from the investigator, he said. "It provides a valuable safeguard for human rights and due process in that a prosecutor who makes a decision might bring greater objectivity to bear than might a prosecutor who is also an investigator."
The third basis of prosecutorial independence was the separation of the prosecutorial and the judicial functions. "Thus I believe it is a mistake for judges to succumb to the temptation to criticise prosecutorial decisions with which they do not agree as this has the potential to confuse a judge's role with a prosecutor's."
Mr Hamilton said that the talk by Mr Garry Patten from the Crown Prosecution Service in England and Wales showed that the taking of judicial reviews of prosecutorial decisions could undermine the independence of the prosecutor.
Mr Patten said that under the Code for Crown Prosecutors each prosecution must satisfy two tests: first, that there is evidence for there to be a realistic prospect of conviction, and, second, that the prosecution is in the public interest.
Every aspect of the judicial process could be examined by way of judicial review, he said. As this happened, it was likely to lead to further development in terms of transparency in the decision-making process.