1.

Introduction
From time immemorial, one of the primary functions of the state has been to maintain law and
order and ensure that justice prevails. This has been a function that remained unchanged even
when the state was evolving from a police state to a welfare state. The citizens pay taxes every
year to the state and the officials for the smooth functioning of all the three organs of the state.
Prolonged pre trials and back log in cases resulting in undue delay in justice will affect the
credibility and reliability of the judiciary which is the corner stone of a legal system. With the
introduction of sections 265A-256 L to the Code of Criminal Procedure,1973 by the Criminal
1
Law (Amendment) Act of 2005 the legislature has officially induced plea bargaining into the
Indian Legal system to curb the problem of back logging of cases in the Indian Courts and to
alleviate the suffering of under trial prisoners. The induction of plea bargaining will be beneficial
in contributing to reforming our criminal justice system.
It is appropriate to begin this paper with the famous quote of Indian Jurist and leading
lawyer Nani Palkhivala: ―the greatest drawback of the administration of justice in India today is
because of delay of cases…The law may or may not be an ass, but in India, it is certainly a snail
and our cases proceed at a pace which would be regarded as unduly slow in the community of
snails. Justice has to be blind but I see no reason why it should be lame. Here it just hobbles
along, barely able to work2.
India‘s efficiency in crime investigation, prosecution and trial process is under a shadow of
doubt and crisis of credibility because more than seventy per cent accused are acquitted. When it
is difficult or impossible to secure evidence to establish crime through able investigation, what
are the alternatives to send the criminals to jails? One limited answer is plea bargaining where
confessions will be bargained from criminal under judicial supervision which might result in
speedy trial and sentencing. This article intends to examine the utility of plea bargaining.
In India the conviction rate is gradually falling which indicates an abysmal state of law and
order‘ or lack of it. The statistics relating to crimes in 2011 released by National Crime Record
Bureau reflect the inefficient functioning of system3. In 2011, the violent crimes were 2.56 lakhs

1
This chapter has come to force w.e.f. 5-7-2006 vide notification No.S.O.990 (E), dt.3-7-2000.
2
Nani A Palkhivala, ―We the nation…lost decade (1994) UBS Publications, p 215
3
5th July 2012, http://www.jagranjosh.com/current-affairs/national-crime-record-bureau-released-thecrime-
statistics-for-2011-1341490766-1
1
while in only 84.5 per cent of these crimes marched to the stage of charge sheeting while just 28
percent ended in conviction. Maharashtra state recorded lowest conviction rate at 8.2%. The
conviction rates for different kinds of crimes in the country is: a) for crimes against women 26.9
per cent, b) Economic Crimes 28.6 per cent, c) Crimes against SCs 31.8%, d) Property Crimes:
34.5 % as per the NCRB Records4 . The Union Minister told Rajyasabha in December 20115 ,
that around 3.2 crore cases were pending in high courts and subordinate courts across the country
while 56,383 cases were pending in the Supreme Court. It also said 74% of the total 3.2 crore
cases were less than five years old6. Similarly, 20,334 out of 56,383 pending cases in the apex
court were less than one year old. There are more than 72 lakh criminal cases such as murder,
rape and riots are pending in different courts across the country with Maharashtra having a
highest backlog of over 13 lakh.
Plea bargaining not only occupies a central position in many adversarial jurisdictions, but
also transcends diverse jurisdictions including the inquisitorial structures. Ethiopia is not an
exception. Inspired by such developments, it has adopted plea bargaining at policy level. It is
also reflected in some proclamations, albeit not detailed. While defining the powers and duties of
the Ministry of Justice (currently restructured as the Federal Attorney General), Proclamation
No. 691/2010 and Proclamation No. 943/2016 entrust the latter with the power to plea bargain.
This power goes to the newly established Federal Attorney General. This together with the policy
represents a step towards providing a legal/policy framework for plea bargaining in Ethiopia,
pending the issuance of the new criminal procedure code which is expected to address the
concept in detail. However, this power of the Federal Attorney General is yet to be enforced7.
This is not to suggest that plea bargaining has no room for application in Ethiopia. Some
studies reveal that an informal and rudimentary form of plea bargaining exists at the investigative
stage, usually the suspect being unrepresented8. Prosecutors justify this practice in terms of
efficiency and the difficulty in obtaining evidence in particular that of witnesses (half a loaf is

4
July 4, 2012, the Hindu, http://www.thehindu.com/news/states/karnataka/article3599124.ece
5
http://articles.timesofindia.indiatimes.com/2011-12-20/india/30537308_1_subordinate-courts-pendencycrore-cases
6
http://articles.timesofindia.indiatimes.com/2012-05-31/mumbai/31920171_1_court-posts-district- and -subordinate-
courts-crore-cases
7
Probably, the fact that the law is generic and the absence of procedural law on the subject matter could be
partly responsible for this. As a law meant to define the power and duties of the AG/the Ministry, the proclamation
simply lists the power and duties of the AG, thepower to allow plea bargaining being one of them.
8
See for example Alemu Meheretu (2014), ‘Introducing plea bargaining in Ethiopia: concerns and prospects’, (PhD
thesis, University of Warwick, UK); UNODC (2011), ‘Assessment of the Criminal Justice system in Ethiopia; in
support of the Government`s reform efforts towards an effective and efficient criminal justice system’, p. 54.
2
 better than none). The practice of plea bargaining has the following general features 9: (a) it
applies to any crime, (b) the defendant obtains a range of concessions from total immunity to
sentence or charge reductions, (c) it does not involve defence attorneys, (d) it is not enforceable,
nor does it form part of the record either in the investigation file or in the judgment.
What is more, cooperation agreements10 are recognized through the Anti- Corruption11,
Anti-terrorism12 , and Witness and whistleblowers protection Proclamations 13. Despite its
practical significance in many jurisdictions, plea bargaining has been a subject of controversy
since its inception. Detractors blame it for undermining fundamental safeguards, risking
wrongful convictions, and eroding the purpose of criminal sanctions 14. On the other hand,
proponents dismiss such accusations altogether and capitalize on its positives15. Yet, some prefer
to remain in the middle i.e., acknowledging the flaws of plea bargaining but at the same time
enticed by its practical benefits uphold it and often propose reforms to rectify its flaws16.
Generally, proponents of plea bargaining praise it for its role in managing caseload, enhancing
the efficiency of the criminal process, and sparing defendants and victims from the trauma of

9
Alemu M., supra note 3, ch. 5.
10
Cooperation agreements are agreements whereby a defendant agrees to cooperate in the prosecution of co-offenders by
supplying a testimony so that he/she receives lenient treatment or immunity. Some literatures see cooperation agreements
as one form of plea bargaining. But this is not sound because cooperation agreements are about finding evidence that will
be tested in full scale trials while plea bargaining is about avoiding full scale trials. However, it is important to note that
the two may overlap in a sense that a defendant may plead guilty and at the same time help the prosecution by testifying
against his accomplices.
11
Article 43(1), The Federal Anti-corruption Special Procedure and Rules of Evidence (Amendment) Proclamation No.
239/2001.
12
Article 33, The Anti-terrorism Proclamation No. 652/2009.
13
Article 3, Protection of Witnesses and Whistleblowers of Criminal Offences Proclamation No.699/2010.
14
See for example Guidorizzi, Douglas (1998), ‘Should we really ban Plea bargaining?: The core concerns for plea
bargaining critics’, Emory L. J. Vol. 47, p.753 ; Kipnis, Kenneth (1976) ,`Criminal Justice and the Negotiated Plea`,
Ethics Vol. 86, p. 93; R.A. Fine (1987), ‘Plea bargaining : an unnecessary evil’, Marquatte law Review, Vol.70 No.4,
p.615 (arguing that plea bargaining encourages crime by weakening the credibility of the system); Sam W.Calan (1979)
,’An Experience in Justice without Plea Negotiation`, Law & Society Review Vol. 13 p. 327; Penny Darbyshire (2000),
`The mischief of plea bargaining and sentencing rewards`, Criminal Law Review; Douglas Smith(1986) ‘The Plea-
Bargaining Controversy’ Journal of Criminal Law and Criminology, Vol.77, No.3, pp. 949-968.
15
See for example Joseph A. Colquitt (2000-2001), ‘Ad hoc plea bargaining’, Tul. L. Rev. Vol.75, p. 695 (who argues that
plea bargaining is a necessary and a legitimate way of disposing criminal cases; the only problem lies on the practice
where `many of the plea agreements struck are inappropriate, unethical, even illegal.`); John Bowers(2007-
2008),’Punishing the Innocent’, U. Pa. L. Rev. Vol. 156, p.1119 (Where the author argues that the innocence problem
springs from misperceptions over: ` (1) the characteristics of typical innocent defendants, (2) the types of cases they
generally face, and (3) the level of due process they typically desire`.); Thomas W. Church (1979), `In defense of pleas
bargaining`, Law & Society Review, Vol.13, No.2, Special Issue on Plea Bargaining , pp.509-525.
16
For some detailed works in this regard see e.g. F.H. Easterbrook (1992), `Plea bargaining as compromise, Yale L.J.
Vol.101, p. 1969; Oren Bar-Gill & Oren Gazal Ayal (2006),`Plea Bargains Only for the Guilty`, J.L. & Econ. Vol.49,
p.353 (proposing a screening model to limit plea bargaining to the guilty); Note (1972), ‘Restructuring the Plea Bargain’,
Yale L.J. Vol. 82, p.286 (arguing for judicial participation in plea negotiations);Note (1972), ‘Plea Bargaining: the Case
for Reform’, U. Rici. L. Rev. Vol.6, p. 325 (proposing open, formalized plea bargaining procedures).
3
 trials17, while opponents challenge the very foundation of plea bargaining as contrary to
constitutional principles, ethics, and fair trial guarantees18. This article singles out one dimension
of the controversy i.e., the debate on whether it is compatible with fundamental principles of
criminal law and procedure and interrogates whether plea bargaining , as adopted by the criminal
justice policy19 and the draft criminal procedure code20, lives up to the fundamental principles of
criminal law and procedure recognised in Ethiopia. Whilst some of such principles are closely
linked with plea bargaining, others are remotely associated with it. This article takes up only
those principles (from the former category) which are designed to ensure the integrity of the
criminal process. It is believed that the article can evoke debate and have positive contributions
in shaping the proposed law on plea bargaining.
The first two sections of the article highlight the nature and type of plea bargaining and the
models of plea bargaining in different structures of criminal justice. These sections explain plea
bargaining, and its types and models. The third section briefly deals with policy justifications and
the particular model that Ethiopia has aimed at. The last section examines whether this model is
in conformity with principles and rights embodied in the Ethiopian legal regime such as the
presumption of innocence, the principle of equality and non-discrimination, the principle of truth
finding, the right to silence and the privilege against self-incrimination, the principle of equality
of arms and the right to appeal. This involves analysis of policy documents (the Criminal Justice
Policy being the main target), the proposed law on criminal procedure, the FDRE Constitution,
criminal laws and the relevant literature.
The Doctrine of Nolo Contendere or Plea Bargaining has been introduced by Criminal Law
Amendment Act, 2005. A new Chapter XXI A on Plea Bargaining was introduced in the
Criminal Procedure Code, 1973. The term Plea Bargaining can be defined as pre-trial
negotiations between the accused and the prosecution where the accused pleads guilty in
exchange for certain concessions by the prosecution. The twin object of plea bargaining is to
reduce the delay involved in criminal trial and to punish the accused with a lesser sentence for
pleading his guilt.

17 See for example K.V.K. Santhy (2013), ‘Plea Bargaining in Indian and US Criminal Law: Confessions for Concessions’
NALSAR Law Review,Vol.7,No.1, p.99; On the economic analysis of plea bargaining, see Landes, William M. (1971), ‘An
economic analysis of the courts’, J. L. & Econ., Vol.14, No.1, pp. 61-107; Kobayashi, Bruce H. and John R. Lott (1996), ‘In
defense of criminal defense expenditures and plea-bargaining’, Int’l Rev. L. & Econ., Vol.16, pp. 397-416.
18 S. Schulhofer (1991-92), `Plea bargaining as disaster`, Yale L.J. Vol.101, p.1979.
19 FDRE (2011), The Criminal Justice Policy of Ethiopia, (Here in after the Criminal JusticePolicy).
20 The Federal Democratic Republic of Ethiopia Draft Criminal Procedure Code, 2013 as was valid in June 2013.

4
 2. Meaning Types and Concept of Plea bargaining

2.1 Meaning

Definitions of plea bargaining vary considerably from one context to another. Some perceive
plea bargaining broadly as any favorable treatment to a defendant in return to not only pleading
guilty but also waiving some rights as the right to appeal and the right to a preliminary
hearing and testifying against other suspects21. However, this seems to unduly expand plea
bargaining and confuse it with the broader spectrum of negotiated justice which involves
many concessions. Simply put, all negotiated justice is not plea bargaining, but plea
bargaining is one form of negotiated justice.
Plea bargaining has been defined as ‘any agreement by the accused to plead guilty in
return for a promise of benefit 22. In a similar fashion, plea bargaining is defined as ‘the
defendant`s agreement to plead guilty to a criminal charge with the reasonable expectation of
receiving some consideration from the state’.23 In both definitions the defendant by pleading
guilty (and not standing as a witness for fellow offenders, as some prefer to include) agrees to
trade his/her right to full scale trial in exchange for ‘some considerations from the state’.
Some suggest that the phrase ‘with reasonable expectation of receiving benefit’ includes what
is termed as implicit plea bargaining in a sense that the offer need not necessarily come
expressly from the prosecutor. Instead, reasonable expectation of the defendant to be treated
leniently by pleading guilty suffices to imply plea bargains24. In various literature, this is
sometimes referred to as implicit plea bargaining.

21
See William F. McDonald (1979), ‘From Plea negotiation to coercive Justice: Notes on the respecification of a
concept’, Law & Society Review, Vol. 13, pp.389-90.Testifying against other suspects, often known as cooperation
agreements is different from plea bargaining. While cooperation agreements are about finding evidence and thus do not
avoid full-scale trials, plea bargaining is about avoiding or shortening full-scale trials. “when one defendant agrees to
testify against another … his statements will be subject to refutation and critical evaluation in the courtroom”, a
phenomenon alien in plea bargains. See Alschuler (1979) , `Plea bargaining and its History`, Colum L. Rev.Vol.79, p.4.
On the contrary, some recognize cooperation agreements as one form of plea bargaining. See William F. McDonald,
already cited.
22
Joseph Di Luca (2005), ‘Expedient MC Justice or Principled Dispute Resolutions? A review of plea bargaining in
Canada`, Crim. L.Q., Vol.50, p.14 [citing Law Reform Commission of Canada (1975), Criminal Procedure: Control of the
process, workingpaper No 15, p. 45].
23
William F. McDonald (1979), ‘From Plea negotiation to coercive Justice: Notes on the Respecification of a Concept’,
Law & Society Review, Vol. 13, Special Issue on Plea Bargaining, p.388 [citing Herbert S. Miller et al (1978), Plea
bargaining in the United States].
24
Ibid.
5
 However, this conception unnecessarily expands the ambit of plea bargaining to include
any guilty plea disposal of cases. This means that one can find plea bargaining in any
jurisdiction which does not recognize or practice plea bargaining per se but simply allows
guilty plea disposal of criminal cases. Such expansive conception overstretches the notion of
plea bargaining off the mark. Another limitation of the above definitions is that they do not
specify the considerations defendants get in exchange to pleading guilty. The broad nature of
the definitions may create an impression that any form of concession even if unrelated to
sentence or charge may be included. Nonetheless, it must be understood that such
considerations should manifest themselves only in lower sentences or charges or some
favorable facts25. Thus, plea bargaining can be defined as a form of negotiation/settlement
between the state and the defendant whereby the latter agrees to plead guilty in return to
charge or sentence concessions26. These concessions take the form of less severe charges or
dropping of charges/counts (commonly referred to as charge bargaining) or some leniency
regarding the punishment (sentence bargaining).
2.2 Types of plea bargaining: charge bargaining and sentence bargaining
Generally, the type of concessions a defendant gets in exchange for pleading guilty
determines the type of plea bargaining. Plea bargaining that involvesreduction of either the
number of charges (counts) or the severity of charges (offences) is commonly referred to as
charge bargaining; whereas, a type of bargaining which involves a recommendation of more
lenient sentence is referred to as sentence bargaining. Charge bargaining represents a kind of
negotiation where a defendant agrees to plead guilty to a criminal charge in return for
dismissal of one of the counts or the defendant pleading guilty for a lesser charge than he/she
could otherwise face at the trial27. The former is known as horizontal plea bargaining and the
latter vertical plea bargaining28. Charge bargaining does not directly involve the sentence the
defendant receives although the driving force behind it obviously rests on the desire to get the
least possible sentence for a reduced charge. Inquisitorial/mixed structures are generally
25
For some detailed list of concessions that may accrue to a defendant see Cohen and Doob (1989-90), `Public
Attitudes to Plea bargaining`, C.L.Q Vol.32,pp. 86-87.
26
Black`s Law (8th ed. 2004), p. 3657, defines the term in a similar fashion as:
A negotiated agreement between a prosecutor and a criminal defendant whereby the defendant pleads guilty to a
lesser offense or to one of multiple charges in exchange for some concession by the prosecutor, usu. a more
lenient sentence or a dismissal of theother charges.
27
Ibid
28
While vertical charge bargaining relates to the severity of the charge (a charge of first degree homicide can be
lowered to that of ordinary homicide), horizontal chargebargaining affects the counts (one or more of the
several counts may be dropped).
6
skeptical of the virtues of charge bargaining. For instance, Germany and Italy, by expressly
proscribing it, exclusively rely on sentence bargaining; and so does Russia. In contrast,
adversarial structures such as USA consider charge bargaining as part of a prosecutor`s
charging discretion and thus put very limited restraint on it. In England too, charge
bargaining, which often takes place well before the charge is formally filed, is less
objectionable than sentence bargaining which in some way involves the judge, and is in
effect, believed to interfere with his /her neutrality 29.
Under sentence bargaining, the prosecutor agrees to propose lenient sentence following
the defendant`s guilty plea, and the concessions may include shorter prison terms, probation
or referring to rehabilitation centers.30 Some further expand the scope of sentence bargaining
to include a wide range of concessions. 31 Sentence bargaining appears to involve an
abandonment of the judge`s sentencing responsibility. 32 Nevertheless, at least in theory, this is
not the case as it is up to the judge to endorse or reject such recommendations. It is interesting
to note that sentence bargaining varies across jurisdictions. Unlike adversarial systems, its
scope is much more limited in inquisitorial procedures. The limitation manifests itself in the
type of the offense it applies to, the type of concessions involved and the amount of sentence
that can be reduced by negotiation. 33
2.3 Concept of Plea bargaining in India
In the United States, the accused has three options with respect to pleas; guilty, not guilty or

Francoise Tulkens,(2005), ‘Negotiated Justice’, [in Demas–Marty and J.R. Spencer, Editors(2005), European
Criminal Procedures 4th ed, (Cambridge University Press), p. 665].
Larry K. Gaines and Roger Leroy Miller,(2009) Criminal Justice in Action, (Cengage Learning, Inc,), p. 295.
For more discussion, see for example Sanders, et al (2007), Criminal Justice, (Oxford: Oxford University Press).
31
Such concessions include:
“judges agreeing to impose specific time limits on probation...;prosecutors refraining from raising
special sentencing provisions for repeat offenders; prosecutors remaining silent at the sentencing
hearing ;or not opposing defendants request for leniency or specialized rehabilitation program;
prosecutors downplaying the harm to the victims; and agreement that a defendant serves sentence at
a particular institution;..., imposition of a fine or restitution; prosecutors agreeing to
schedulesentencing before a lenient judge.”
See Kress(1980), Prescription for Justice: the theory and the Practice of Sentencing Guidelines, 87 cited in
William W. Wilkins(1988), `Plea negotiation ,Acceptance of responsibility, Role of the offender and departures
:Policy decision in the promulgation of Federal Sentencing Guidelines’, Wake Forest L. Rev. ,Vol. 23, pp. 185-
86.
32
Ibid.
33
While sentence bargaining in adversarial procedure in general applies across the board to all crimes and the
amount of sentence concession is not limited (at least statutorily), it works otherwise in inquisitorial procedures-
the type of offence and the amount of sentence concession are statutorily fixed. See Generally Stephen C.
Thaman (2007), `Plea bargaining, Negotiating Confessions and Consensual Resolution of Criminal cases`
Electronic Journal of Comparative Law, Vol. 11.
7
plea of nolo contendere34. In plea of nolo contendere the defendant answers the charges made
in the indictment by declining to dispute or admit the fact of his or her guilt. The defendant
who pleads nolo contendere submits for a judgment fixing a fine or sentences the same as if
he or she had pleaded guilty. The difference is that a plea of nolo contendere cannot later be
used to prove wrongdoing in a civil suit for monetary damages, but a plea of guilty can. 35
A plea bargain is a contractual agreement between the prosecution and the accused
concerning the disposition of a criminal charge. However, unlike most contractual
agreements, it is not enforceable until a judge approves it.36
The Indian concept of plea bargaining is inspired from the Doctrine of Nolo Contendere. It
has been incorporated by the legislature after several law commission recommendations. This
doctrine has been considered and implemented in a manner that takes into account the social
and economic conditions prevailing in our country. 37 There are three types of plea
bargaining; i) charge bargaining; ii) sentence bargaining; and iii) Fact bargaining.
Negotiating for dropping some charges in a case of multiple charge or settling for a less
grave charge is called charge bargaining. Where the accused has an option of admitting guilt
and settling for a lesser punishment it is sentence bargaining. Lastly, negotiation which
involves an admission to certain facts in return for an agreement not to introduce certain
other facts is fact bargaining. 38
2.4 Reasons for Introduction of Plea Bargaining
nd
The Law commission in its 142 report had outlined a scheme for plea bargaining in India.
Inits report the commission pointed out that in several cases the time spent by the accused in
jail before commencement of trial exceeds the maximum punishment which can be awarded
to them if found guilty39, there is unavailability of statistical data regarding under trial
prisoners etc., resulting in a denial of justice. The report brought out the urgency for an

34
Latin term which means" I do not wish to contest".
35
West's Encyclopedia of American Law
36
Supra n 3
37
Plea Bargaining - A Practical Solution by Sowmya Suman
38
Plea Bargaining : A Revelation by Dr Abraham P. Meachinkara 2010 (4) klt jrl
39
Rudul Shah v. State of Bihar AIR 1981 SC 928
8
improved version of the scheme to be implemented.40 There were some reservations with
respect to introduction of plea bargaining in India, mainly, issues like illiteracy, prosecution
pressure on innocent persons, incidence of higher crime rates, criminals may escape due
punishment to which the commission stated that the pros and cons should be weighed before
implementation. The commission in its 154th Report,41 the Law Commission reiterated the
need for remedial legislative measures to reduce the delays in the disposal of criminal trials
and appeals and also to alleviate the suffering of under trial prisoners. The 177 th Report of
the Law Commission, 2001 also sought to incorporate the concept of plea-bargaining as

suggested in the 154th report. The Report of the Committee on Reforms of the Criminal
Justice System, 200342 stated that plea-bargaining being a means for the disposal of
accumulated cases and expediting the Headed by Justice V.S.Malimath, former Chief Justice
of Karnataka and Kerala High Courts. The first time that the State has constituted such a
Committee for a thorough and comprehensive review of the entire Criminal Justice System
so that necessary and effective systematic reforms can be made to improve the health of the
system. delivery of criminal justice should be introduced. The Committee thus reaffirmed the

recommendations of the Law Commission of India in its 142 nd, 154th and 177th Reports.43
2.5 Indian Judiciary’s Approach towards Plea Bargaining
The Indian judiciary has been reluctant in applying this concept prior to the 2005 amendment
and has on various occasions rejected the concept of plea bargaining even after several
recommendations of the Law Commission of India. 44 This was evident since the courts
continued giving decisions unfavorable to plea bargaining even after such recommendations.

40
The subject of the 142nd Report of the Law Commission of India was on the concessional treatment for
offenders who on their own initiative plead guilty without bargaining. See
http://lawcommissionofindia.nic.in/101- 169/Report142.pdf

41
See http://lawcommissionofindia.nic.in/reports/Annexure%20III%20of%20177th%20report.pdf
42
Headed by Justice V.S.Malimath, former Chief Justice of Karnataka and Kerala High Courts. The first time
that the State has constituted such a Committee for a thorough and comprehensive review of the entire
Criminal Justice System so that necessary and effective systematic reforms can be made to improve the health
of the system.
43
See http://www.mha.nic.in/pdfs/criminal_justice_system.pdf
44
Supra n 15
9
The earliest cases in which the concept of plea bargaining was considered by the Hon’ble
Court was Madanlal Ramachander Daga v. State of Maharashtra45 in which it observed:

“In our opinion, it is very wrong for a court to enter into a bargain of this character
Offences should be tried and punished according to the guilt of the accused. If the Court
thinks that leniency can be shown on the facts of the case it may impose a lighter
sentence.”

In Muralidhar Megh Raj v. State of Maharashtra46 the Apex Court continued to disapprove
the concept of plea bargaining when the appellants pleaded guilty to the charge where-upon
the trial Magistrate, sentenced them each to a piffling fine. The Court observed:

“To begin with, we are free to confess to a hunch that the appellants had hastened with
their pleas of guilty hopefully, induced by an informal, tripartite understanding of light
sentence in lieu of nolo contendere stance.”

47
In Ganeshmal Jasraj v. Government of Gujarat and another the Apex Court considered the
effect of plea bargaining on evidence and order of conviction when it observed:

“There can be no doubt that when there is an admission of guilt made by the accused as a
result of plea bargaining or otherwise, the evaluation of the evidence by the Court is
likely to become a little superficial and perfunctory and the Court may be disposed to
refer to the evidence not critically with a view to assessing its credibility but
mechanically as a matter of formality in support of the admission of guilt. The entire
approach of the Court to the assessment of the evidence would be likely to be different
when there is an admission of guilt by the accused….In the instant case, it is true that the
learned magistrate did not base his order of conviction solely on the admission of guilt
made by the appellant, but it is clear from his judgment that his conclusion was not
unaffected by the admission of guilt on the part of the appellant and in the circumstances,

45
AIR 1968 SC 1267
46
AIR 1976 SC 1929
47
AIR 1980 SC 264
10
 it would not be right to sustain the conviction of the appellant.”
48
Subsequently in Kasambhai Ardul Rehmanbhai Shaikh v.State of Gujrat the Hon’ble Court
held:

“It would be contrary to public policy to allow a conviction to be recorded against an

accused by inducing him to confess to a plea of guilty on an allurement being held out to
him that if he enters a plea of guilty, he will be let off very lightly. Such a procedure
would be clearly unreasonable, unfair and unjust and would be violative of Art. 21 of the
Constitution.It would have the effect of polluting the pure fount of justice because it
might induce an innocent accused to plead guilty to suffer a light and inconsequential
punishment rather than go through a long and arduous criminal trial.”
49
In Kachhia Patel Shantilal Koderlal v.State of Gujarat and another . The Court held
that practice of plea bargaining is unconstitutional, illegal and would tend to encourage
corruption, collusion and pollute the pure fount of justice.

50
In State of U.P v. Chandrika The Hon’ble Apex Court obsereved:

“Mere acceptance or admission of the guilt should not be a ground for reduction of
sentence. Nor can the accused bargain with the Court that as he is pleading guilty
sentence be reduced.”

After the amendment, the concept of plea bargaining has found recognition in the Indian
Courts since the court is left with no option but to interpret the law and not make laws. The
courts have held that criminals who admit their guilt and repent upon, a lenient view should
be taken, while awarding punishment.51

48
AIR 1980 SC 854

49
[1980] 3 SCC 120
50
AIR 2000 SC 164
51
state of Gujarat v. Natwar Harchanji Thankor 2005 Crl.L.J. 2957 (Guj)

11
 3 Evolution and Development of Plea Bargaining
Plea bargaining is a concept that originated in the United States and it has evolved over the
ages to become a prominent feature of the American Criminal Justice system. Plea bargaining is
the pre trial negotiation between the defendant and prosecution during which accused pleads
guilty in exchange for certain concession by the prosecutor. This usually involves negotiations to
reduce either the sentence or the seriousness of the charge. In the US, more than 75 percent of
criminal cases end in guilty pleas, almost all resulting from plea bargaining. In federal courts,
virtually all defendants who plead guilty qualify for a 20 percent reduction in the length of their
sentence. The constitutional validity of plea bargaining was considered by the US courts in the
Landmark decision in Brady v United States where the Court upheld the constitutionality of plea
bargaining. The court then continued to hold that plea bargaining is constitutional through its
decisions in various subsequent cases.
The famous saying “Justice delayed is justice denied” holds utmost significance when the
concept of Plea bargaining is discussed. The number of cases pending in the courts is shocking
but at the same time, it has been normalized by people. These astonishing figures are no more
astonishing because people have started accepting this as their fate. The concept of plea
bargaining was not there in criminal law since its inception. Considering this scenario, Indian
Legal scholars and Jurists incorporated this concept in Indian Criminal Law. As the term itself
suggests that it is an agreement between accused and the prosecutor. Many countries have
accepted this concept in their Criminal Justice System (CJS).
Plea bargaining is a pretrial negotiation between the accused and the prosecution where the
accused agrees to plead guilty in exchange for certain concessions by the prosecution. It is a
bargain where a defendant pleads guilty to a lesser charge and the prosecutors in return drop
more serious charges. It is not available for all types of crime e.g. a person cannot claim plea
bargaining after committing heinous crimes or for the crimes which are punishable with death or
life imprisonment.
From time immemorial, one of the primary functions of the State has been to maintain law
and order and ensure that justice prevails. The social norms or laws of the society got evolved in
every civilisation independently but almost on parallel lines and all had similar philosophy.
Almost everywhere the early theories were based on divinity and equity. Penances for sins as
well as physical and financial punishments for other crimes were practiced. A civilisation grew,
12
the philosophy, law and practices took shape and got modified according to local circumstances
and needs, and foreign influences and interactions due to visits or wars. Before the invention of
the art of writing everything was passed from generation to generation by the word of mouth.
Even many of the early Greek writings are not preserved. Legal history has been seen as the
recording of the evolution of laws and the technical explanation of how these laws have evolved.
Authentically dated records of ancient systems are not available; one has to depend on epic
writings or scriptures like Homer in Greece, Dharmashastra, Arthashastra, Ramayana and
Mahabharata in India for a view of the ancient law. Roman and Greek laws are seen by western
legal historians as the sources of law, although the oriental civilisations (eastern) like China,
India and Egypt had equally strong and efficacious systems in place. These legal systems could
not flourish in to and claim their place in the modern legal systems because of, at least in India,
the fragmented political authority in the sub-continent and the advent of British rule. Now it is
too late even to try to review the old system or identify and integrate its relevant aspects in
modern system, while attempting to trace development of the principals of criminal law one
cannot afford not to discuss the ancient Indian systems.
3.1 Indian Origin of Plea Bargaining:
The first phase in the evaluations of law was when the social norms were evolved as of
necessity which in time got crystallised as custom. These customs governed the conduct of the
people. The next phase was the era of Codes. 52 Ancient Codes were depicted as being revelations
by the deity. A supernatural presidency was invoked to keep together the State, the race and the
family. Consequently all men were required to periodically perform common rite and offer
common sacrifices. These duties were more significantly recognised and made imperative in
purifications and expiations. These expiations were a token of punishment for involuntary or
neglectful disrespect to the super natural authority.53 This practice is continued even now in
almost all religious orders, all the ancient Codes mingled up religious, civil and moral ordinances
regardless of the differences in their essential character.54 Maine believed that all modern law
could be distinctly traced back to one or other of these Codes.55

52
Ancient Law by Henry Sumner Maine, Charles Scribner & Co.1867. Digitized by Google.p.54
53
Hrudayaballava Das, “Introduction of the Concept of Plea Bargaining in Criminal Administration of
Justice,” Criminal Law Journal, (1990), p.120
54
Supra note 6.
55
Ibid.
13
3.1.1 Seeds of Plea Bargaining in Dharmashastras and Manusmruti:
Further, our various Dharmashastras and Smritis propounded plea-bargaining as a means of
self-purification by reducing or removing the effects of sin of committing offence.56 Apart from
the punishments which the king was authorised to impose under laws for committing offences,
the Shastras and Smritis provided certain measures to be imposed by a person for the sin
committed either against laws or laws of religion or those governing personal conduct, either
openly or secretly. 57 The object of such measure was considered necessary to regain his status in
the society and also to reduce the ominous effects of the offence (sin) committed. Confession and
repentance was important measure for self- purification.
Forgiveness on repentance, similar to the principle of plea bargaining is imbedded in our
culture, tradition, religion and civilisation from ages.58 Shastras and Smritis prescribed that
irrespective of punishment by the king, an individual who wanted to purify himself had to get
himself purged of the sin of committing offence by resorting to the austerities (probation /
admonition) or to repentance for wrong doing. During the reign of Vikram Chola (1118-1135
AD) a man forcefully pushed his wife. She fell and died. Men from all corners assembled and
declared the husband guilty. He also admitted his guilty. He was ordered to provide fine by
burning of a lamp in a temple. 59 In plea bargaining also one has to follow the Manu’s Dictum i.e.
to inflict just punishment on those who act unjustly by means of bargain between the parties. It is
a sum and substance of the philosophy of punishment in cases to be resolved through plea
bargaining.
3.1.2 Koutily’s Approach
All ancient legal systems were based on morality and the punishment generally amounted
to penitence, gradually these developed in to more physical and financial punishments. In the
ancient Indian legal systems the Arthashastra of Koutilya composed in 4th century B.C. is a
complete Code on criminal law besides economics, foreign policy and statecraft. Arthashastra is
the science of economics, state policy, law and justice. 60

56
Supra note 7.
57
R.N.Dandekar, History of Dharmashastra, Government Orient Series, No.6. Poona 1968, p.14
58
bid.,p.16
59
M.Y.Iqbal, “Concept of Plea Bargaining” IX , Nyaya Deepa, (2008), p. 50
60
R.Ramashastry, Koutilya- Arthashastra, (Bangalore Government press, 1915) p .46
14
 Ethical and economic perspectives were paramount in koutilya’s mind while prescribing
or creating the laws. He deserves to be credited for innovative initiatives in tort and criminal
laws. He introduced negligence as mensrea for fixing liability. Koutilya recognised that medical
negligence is an offence. It was Koutilya again who introduced pecuniary fines in addition to
expiation measures for such offences. Such fines were designed to act as deterrent. If mensrea
was established the fines were exemplary and the receipts went to the treasury. In addition the
offender was required to compensate the victim. 61 Commutation of sentences as also reduction of
sentence in certain conditions was also provided. 62
Thus in a sense, Koutilya was the forerunner of victims ‘rights, welfare and plea
bargaining. Koutilya also advocated and prescribed just punishment. In State of Madhya Pradesh
v. Bala63 the Supreme Court observed: “even in time of Koutilya the need for awarding just
punishment was recognised. According to Koutilya whoever imposes severe punishments
becomes repulsive to people, while he who awards mild punishments becomes contemptible.
When deserved punishment is given it endows the subjects with spiritual good, material
wellbeing and pleasers of the senses. This philosophy is woven into our Statute and our
jurisprudence and it is the duty of those who administer the law to bear this in mind” .
Koutilya can be rightly credited for propounding an exhaustive penal code and criminal
procedures with modern concepts of medical negligence, victims welfare and plea bargaining.
The Arthashatra of Koutilya is spread over 15 points called Abhikaranas. 64 In that part IV deals
with “Removal of thorns”. By thorns is meant the individuals/criminals. It means identifying and
controlling or eliminating anti-social elements or activities. It prescribes punishments for all
activities identified and recognised by law as offence. The main thrust of his penal system was
just punishment. He believed that people can be reformed by just punishment.65 He argues for
commutation of even capital offence if committed without motive, commutation of prison
sentences with fine was liberally provided and mitigating circumstances like ignorance,
inadvertence or temporary insanity for reduction of sentences were recognized.66
…………………

61 Ibid.
62
Chandrasekaran Pravin, Koutilya : Politics, Ethics and Statecraft,(Harwrd Kennady School, 2006) p.17
63
AIR 2005 SC 3567
64
Also called as books by R.Ramashastry and Prof. R.P.Kangle, comprising 150 chapters and 180 topics
and containing 6000 shlokas.
65
L.N.Rangarajan, Koutilya; The Arthashastra. 1st edn.( Penguin Books, India ,1992) p.14
66
Ibid.
15
3.1.3 Quranic Views:
It would be wrong to assume that the concept of plea bargaining found favour of
Courts and was practiced in recent past. In fact it was practiced as a passion of justice in
India. Mughal Emperor Jahangir (1605-1627) had a passion for justice. He himself used to
hear complaint of his subjects.67
One day Jahangir’s beloved queen Noorjahan targeted a deer from the king’s palace
known as ‘Ahukhana’. The arrow unfortunately hit a boy behind a bush. It was an un-
intentional act that the boy received arrow stroke and died. The father of the boy, a washer
man knocked the metallic bell of cry for justice. Jahangir immediately responded to the cry
for justice and calls the “Firyadi” to hear his complaint. On being briefed, he summoned the
queen from the royal pavilion to the justice hall as an ordinary accused. After hearing, he
pronounced the judgement as per law of equality life for life. The courtier sitting in the
justice hall perplexed. Even the aggrieved washer man looked in disbelief that Jahangir
would sacrifice his most beloved for the cause of justice. They begged for the life of queen.
Even the washer man bowed down and craved for mercy. 68
In order to meet the strict claims of justice, he stood firm on his judgement until he
was convinced and satisfied by the Jury Courtiers that there is concession in the Quaranic
law that if the aggrieved party agrees, the strict claim of justice may be meted out with plea
bargaining.69 The victim’s father happily agreed to it and the condemned queen was thus
relived of the punishment after paying the bargained amount to the full satisfaction of the
aggrieved.70 … ……

……… ……………

67 Supra note 13., p.51

68 Ibid.
69 Ibid.
70 Supra note 21.
16
 4 Development of Plea Bargaining in modern India

Dispute blocks development, disturbs the peaceful conduct of human life and hence
dispute sustained without resolution develops in to a conflict beyond control under normal
circumstances. 71 Since disputes are inevitable, there is an urgent need to find a quick and
easy method of resolution. Due to the impact of British judicial system in India, we are
following adversarial method of resolving disputes in the Courts. Modern legal system
strongly believes in pitting one party against other to derive truth, the contradicting claims
are tested against each other and a decision is imposed by a powerful third party that
generally is the State.72 This is popularly known as the adversary system followed in most of
the common law countries. In adversarial style, the disputants necessarily deny the claim or
allegation of each other irrespective of it being in controvertible truth. Formality forces them
to contradict each other.73 In civil cases pleadings differ in diametrically opposite direction
making it very difficult to identify the real issues to be adjudicated. In criminal cases charges
are framed on the one hand and the accused provides arguments or explanation to dispute in
each and every contention. Except allotting time and supervising the conduct, the Court has
no major role in trial. If both parties fail in their responsibilities the presiding officer has very
less role to play.
Real reason for increasing in the filing of criminal case is not that Indians have turned
increasingly litigant. It is because people have become more conscious of their rights and
obligations. People repose much higher faith in judiciary, so they knock their doors for
justice. The number of cases pending trial in the 12,378 district and subordinate courts in the
Country is estimated to be 3.2crores.74 One of the reasons attributed to the huge increase in
the number of pending cases in higher courts and subordinate courts is that the vacancies for
judges were not filled in time.75 Therefore, the biggest challenge before the Indian justice
delivery system is that of delay in the dispensation of justice. Heavy backlog of cases in the

71
Smitha Panday, “Plea Bargaining,” Criminal Law Journal, Vol.120 , ( 2014 ), p.105
72
S.Preetha, “ Plea Bargaining and Criminal Justice: An Overview,” C.U.L.R. Vol. 3 &4 (2007), p.296
73
Ranjana Reddy, “ New Horizon Opens In Criminal Law: Plea Bargaining” Criminal Law Journal,
(2007), p.120
74
Vijayavani, Kannada Daily, dt.11th October, 2014, p.17
75
Ibid.
17
courts and inevitable delay in dispensing justice has been to such an extent that it is shaking
the public trust and confidence in the legal system. It is tending to erode the quality of social
justice and creating impediments in the socio- economic development of the country.76
Thus timeliness and responsive justice are totally neglected in criminal justice system
due to overload of cases. In most of the cases trials do not commence for a period of 2 to 3
years after the accused was remitted to judicial or police custody. Large number of persons
accused of criminal offences are unable to secure bail and they are in jail for years together.
The time spent by the accused in the jails before the commencement of trails exceeds the
maximum punishment, which can be awarded to them even if they are found guilty of
offence charged against them.
4.1 Constitutional Mandate for Speedy Justice
The Supreme Court made it clear that “speedy trial” is of essence to criminal justice and
there can be doubt that delay in trail, by itself constitutes denial of justice. 77 In Maneka
Gandhi v. Union of India78 the Supreme Court observed that there can be no doubt that
speedy trial, and by speedy trial we mean a reasonably expeditious trial, is an integral and
essential part of fundamental right to life and liberty enshrined in Article 21 of the
Constitution of India. In a significant judgement in Abdul Rehman Antulay v. R.S. Nayak79
the Supreme Court declined to fix anytime limit for trial of offences. The burden lies on the
prosecution to justify and explain the delay. The Court held that the right to speedy trial and
speedy justice flowing from Article 21 is available to accused at all stages namely the stage
of investigation, inquiry, trial, appeal, revision and retrial. As regards the time limit the Court
said that it has to be decided by balancing the attendant circumstances and relevant factures,
including nature of offence, number of accused and witnesses, the work load of the court etc.
No time limit can be fixed for speedy trial. In Moses Wilson v. Kasturba 80 the Supreme
Court expressed concern in delay in disposal of cases and directed the concerned authorities
to do needful in the matter urgently before the situation goes totally out of control. In present

76
Devina Gupta, “Plea Bargaining…A Unique remedy to reduce backlog in Indian Courts,” Criminal Law
Journal, 1 , ( 2010), p.65
77
Hussainora Khatoon v. State of Bihar. AIR 1979SC 1360
78
AIR 1978 SC 597
79
AIR 1992 SC 1630
80
AIR 2008 SC 379
18
case, a suit was filed in 1947 for a sum of Rs.7000/- and continued for 60 years and had not
been disposed of until 2008. Thus Court expressed deep concern at the delay in disposing of
cases in our courts. Because of delay in disposal of cases people in this Country are fast
losing faith in the judiciary. Delay in speedy justice violate right to life. The Preamble of the
Constitution, enjoins the State to secure social, economic and political justice to all its
citizens, making the Constitutional mandate for speedy justice inescapable. The Directive
Principle of State Policy under Article 38 (1) directs the State to strive for reducing
inequalities amongst groups of people in different area. The State shall secure that the
operation of the legal system promotes justice on the basis of equal opportunities and shall,
in particular, to provide legal aid by suitable legislation or scheme or in any other way to
ensure that opportunities for securing justice are not denied to any citizen by reason of
economic or other disabilities.81
One of the most neglected aspects of criminal justice system is the delay caused in the
disposal of the criminal cases and detention of the poor accused pending trial. The criminal
justice system in India is facing a very serious crisis today. It is a matter of common
experience that in many cases where the persons are accused of minor offences punishable
not more than three years or even less-with or without fine, the proceeding are pending for
years together. If they are poor and helpless they languish in jails for long periods either
because there is no one to bail them out or because there is no one to think of them. The very
pendency of criminal proceedings for long periods by itself operates as an engine of
oppression. Quite often the private complainants institute these proceedings out of oblique
motives. Even in case of offences punishable for seven years or less with or without fine the
prosecution are kept pending for years and years together in criminal courts. 82 It is a crying
shame upon our adjudicatory system which keeps men in jail for years on and without a
trial. 83
In all criminal prosecutions the accused shall enjoy the right to a speedy and public
trial. 84 Everyone arrested or detained shall be entitled to trial within reasonable time or to

81
Constitution of India, Article 39 A
82
Directors v. Union of India.1996 (4) SCC 33
83
Kedra Pahadia v. State of Bihar. AIR 1981 SC 939
84
Sixth Amendment to the American Constitution.
19
release pending trial. 85 Even though in our Constitution speedy trial is not specifically
enumerated as a fundamental right, but it is implicit in Article 21 of the Constitution. In
86
Maneka Gandhi v. Union of India it was held that Article 21 confers a fundamental right
on every person not to be deprived of his life or liberty except in accordance with the
procedure prescribed by law. If a person is deprived of his liberty under a procedure which is
not reasonable, fair or just, such deprivation would be violate of his fundamental right under
Article 21 and he would be entitled to enforce such fundamental right and secure his release.
In Hussainara Khatoon (IV) v. State of Bihar 87 the Supreme Court observed “The State
cannot avoid its constitutional obligation to provide speedy trial to the accused by pleading
financial or administrative inability. The State is under a constitutional mandate to ensure
speedy trial and whatever is necessary for this purpose has to be done by the State. It is also
the constitutional obligation of this Court, as the guardian of the fundamental rights of the
people, to enforce the fundamental right of the accused of speedy trial by issuing necessary
directions to the State which may include taking positive action, such as augmenting and
strengthening the investigative machinery, setting up new courts, building new courts,
providing more staff and equipment to the courts, appointment of additional judges and other
measures calculated to ensure speedy trial.
Despite the judicial interpretation of the Apex Court, the situation has not been changed.
Legal rights even today remain non-existent for a large percentage of the illiterate, ignorant
and poor population of our country. The Courts in these cases did not simply affirm the
blueprint of legal norms, but have tried to assess the reality prevailing in society and
administration at different stages, namely, the prison stage, the bail stage and other law
enforcement levels, revealing the sad state of affairs prevailing in the society and depicting
the vast gap existing between law in words and law in action.
The quote from the figures compiled by the Supreme Court, a total of 2,46,00,000
number of criminal cases were pending in subordinate courts as on 11th October 2014. 88 It is
estimated that in some of the subordinate court over 30 to 40 per cent arrears relate to petty
cases and out of the total pending cases, 40 percent of the cases were pending for 5 years and

85
European Convention on Human Rights 1960, Article (5)
86
A.I.R. 1978 SC 597
87
(1980) I SCC 98,107
88
Supra note 26
20
above. 89 The over-flowing dockets of the Courts all over the country should not however be
taken as a sign of failure of the system but a sign of faith in the administration of justice by
those who are involved in litigation. In Moti Ram v. State of Madhya Pradesh Krishna90
lyer, J. Observed:
“The consequences of pre-trial detention are grave. Defendants presumed innocent are
subjected to psychological and physical deprivation of jail life, usually under more
onerous conditions than are imposed on convicted defendants. The jailed defendant
loses his job if he has one and is prevented from contributing to the preparation of his
defence. Equally important, the burden of his detention frequently falls heavily on the
innocent members of his family.”
Long delay has also the effect of defeating justice in quite a number of cases as a result
of such delay, the possibility cannot be held out of loss of important evidence, because of
fading of memory or death of witness. The consequence thus would be that a party with even
a strong case may lose it not because of any fault of its own, but because of the tardy judicial
process entailing disillusionment to all those who at one time, set high hopes in courts. The
delay in the disposal of cases has affected not only the ordinary type of cases but also those
which by their very nature, call for early relief. The problem of delay and huge arrears stares
us as all and unless we can do something about it, the whole system would get crushed under
its weight. We must guard against the system getting discredited and people losing faith in it
and taking recourse to extra legal remedies with the sinister potentialities.91

89
Ibid.
90
1978 Cri. L .J. 1703
91
Ibid.
21
 5 Causes for Delay in Criminal Cases

5.1 Delay during Investigation

“Investigation” includes all the proceedings under the Criminal Procedural Code1973, for the
collection of evidence conducted by a police officer or by any person (other than a magistrate)
who is authorized by a magistrate.92 Investigation constitute :--
i) Proceeding to the spot,
ii) Ascertainment of the facts and the circumstances of the case,
iii) Discovery and arrest of the suspected offenders, collection of evidence relating to
commission of the offence which consist of:
a) Examination of various persons and the reduction of statements into
writing if the officer thinks fit,.
b) The search of places or seizure of the things considered necessary for the
investigation and to be produced at the trial, and
i) Formation of the opinion as to whether by the materials collected there
is a case to place the accused before the magistrate.93
Of necessity, the police, especially the investigating police, come foremost in the
administration of criminal justice system as it discharges certain functions in the matterof
collection and collusion of evidence over which the court adjudicates at a later date. The
functions of the judiciary and of the police are complementary, not overlapping and the court's
function begins only after framing of the charge sheet. Generally, an investigation almost
invariably takes several days even in less complicated cases. In the more complicated cases,
investigations have very often taken month to finish. It is commonly said that the investigation
agency now-a-days is not able to devote as much time as it should do to criminal cases pending
in courts, because the police which constitute the investigating agency is over burdened with
manifold other duties, including those relating to maintenance of law and order. The following
are some of the important causes of delay during the investigation;

92
Code of Criminal Procedure 1973, Section 2 (h)
93
H.N.Rishbud v. State of Delhi, A.I.R. 1955 SC 196
22
a) Inadequacy of Personnel
It is general complaint of the police officers that the department is very much under-staffed and
has to meet a very heavy demand on its personnel. The requirements of the law and order
situation, bundobust duties, escort of prisoners to the Courts, patrol duties, traffic arrangements,
protection of the VIPs, the growth of crime in general and the creation of new types of offences
during the last few years, have all increased the work of police considerably, while the police
strength has remained more or less at the same level. Due to this shortage of police personnel,
an investigation almost invariably takes several days even in the less complicated cases. In the
more complicated cases, investigations very often take months to finish. 94
b) Extra-Territorial Jurisdiction
The territorial jurisdiction of a police station is also generally very large and runs into several
square miles. It is usual for a police officer who is actually engaged in the investigation of a
serious offence at a spot tar away from the police station to receive a message giving
information of the commission of another offence at another corner of his beat. The polite
officer may, accordingly have more than one case simultaneously pending investigation on his
hands, has to move backwards, and forwards from one place to the other and this in the mofussil
on account of lack of adequate transport and bad roads, is by no means easy. In addition to this,
there are several routine duties, which have to be performed by the personnel of a station. In the
result, the investigation of cases seldom receives adequate attention.95
c) Facilities for Transport and Scientific Investigation
In recent years the great progress has been made in foreign countries in the application of
science as an aid to police work. The introduction of motor cars, giving greater mobility to the
police forces, the use of wireless to facilitate dissemination of messages, gradual development
of police laboratories to help in investigation of crime has been modernised. Almost every
police whom the law commission examined emphasised the need of the introduction of
scientific methods of investigation in the police system. The absence of scientific aids to
investigation is a severe handicap and delays the entire investigatory process. Generally, the
police station in rural areas are not even provided with elementary technical facilities, nor do the
officers possess the training, necessary to make use of such facilities. The Investigations are

94
Fourteenth Report of the Law Commission of India. p.736
95
Ibid., p.737
23
unnecessarily delayed by the need of obtaining reports (turn the chemical examiner and securing
other expert evidence that takes extra deal of time). The police force has not been provided with
adequate facilities of transport with the result, that by the time the investigating officer reaches
the place of crime, most of the clues would have already disappeared. Leaving aside towns
where some flying squads have been provided which can reach the scene of occurrence very
quickly, in the rural stations the average time taken to reach the scene of the offence is three to
four hours.96 50 Lack of such facilities ultimately impedes the process of investigation.
d) Piecemeal Investigation
Another complaint relating to the method of investigation by the police is that the cases are not
investigated by one officer but by several officers in succession. There are cases in which no
less than half a dozen police officers had taken part in the investigation at different stages. Such
cases are not infrequent. On many occasions while the investigating officer is in the midst of the
investigation, called away in connection with some other duty. The result is that either he
suspends the investigation or hands it over to a junior officer. Many a time, investigation
officers are transferred without being allowed to finish the investigation on hand. Further, the
general practice appears to be that even in murder cases, investigation is first started by head
constables, who record some statements of witnesses. These witnesses are then in turn examined
by a sub-inspector and a circle inspector, one after the other and very often variations occur in
the versions of witnesses. These variations in the statements destroy the effectiveness of the
evidence of the witnesses whose statements are taken. Piecemeal investigation is thus one of the
principal defects in investigation of which frequent advantage is taken by the defence in order to
delay the process of investigation. 97
e) Lack of Separate Investigation Branch
It has also been observed by the commission that on account of the various duties to police
officers it is not practicable for them to give exclusive and single-minded attention to the
investigation of crime. It sometimes happens that at police officer while investigating a
particular offence is suddenly called upon to attend to some other duty and he has either to
suspend the investigation or hand it over to a junior officer. It has also been noticed by
commission that the police officers do not give to the investigation of lesser offences the amount
of care and attention which they require. Having regard to the insufficiency of personnel and

96 Ibid.,p.738
97 Ibid., p739
24
their varying duties, it is difficult to expect from them either thoroughness or the promptness in
investigation which are the characteristic features of the police force in the western countries.98
f) Lack of Public Co-operation

Another reason is that the police officers have objections that investigation is hampered owing
to lack of cooperation on the part of the public. It is said that it is not unusual for even persons
who have been eye-witnesses to the commission of an offence to evade or attempt to evade
giving evidence. Even it is said that the witnesses in the rural and smaller urban areas are not
assured even of their expenses of going to coming from police stations and Courts. All these
factors not only add to the difficulties of investigation but also delay the investigation. 99
5.2 Delay during Trial
The absence of witnesses, absence of counsels, adjournments-on adequate grounds or
otherwise, crowded lists and failure to examine witnesses though present, absence of a system
of day- to-day hearing, inadequate strength of judge and delay in the delivery of judgements
are all causes which lead to delay in criminal cases.
a) Witnesses
In Swaran Singh v. State of Punjab100 the Apex Court refers to the plight of witnesses and
reasons for their reluctance to give evidence by observing that the witnesses may come from a
far-off place. Many times and at cost to their own selves and their families, to find the case
adjourned. The unscrupulous lawyers get adjournments for one excuse or the other till a
witness is tired and gives up. Such adjournments without any valid cause unwittingly make
court a party to miscarriage of justice. Further a witness, in absence of protection is threatened,
abducted, maimed, and even bribed. A witness is not given any respect in the court. He is
pushed out from the crowded courtroom by the peon, with no place to sit and no place even to
have a glass of water, he waits for the whole day and then he finds the matter adjourned. He
finds himself in a hapless situation due to unchecked and prolonged examination and cross-
examination in courts. It is the administration of justice that suffers.
b) Adjournments
A notorious problem particularly in the trial courts is the granting of frequent adjournments,
many a times on flimsy grounds. This malady has considerably eroded the confidence of the

98 Ibid., p.740
99 Ibid., p.743
100 A.I.R 2000 SC 2017

25
people in the judiciary. Adjournments not only contribute to delays in the disposal of cases,
they also cause hardship, inconvenience and expense to the parties and the witnesses. The
witness has no stake in the case and comes to assist the court to dispense justice. He sacrifices
his time and convenience for this. If the case is adjourned, he is required to go to the court
repeatedly. He is bound to feel unhappy and frustrated. This also gives an opportunity to the
opposite party to threaten or induce him not to speak the truth. The right to speedy trial is
thwarted by repeated adjournment. The grounds for adjournment are numerous, sometimes the
number of cases set down for trial on a day proves to be excessive, sometimes the court has the
time to hear the case but the parties desire adjournment. A number of cases are adjourned only
because of convenience of the advocates. Neither the law nor a judge can refuse adjournment
on the ground of convenience of the advocate but in practice he rarely does so.
The Supreme Court in the case of N G Dastane v. N Srikant Shinde101, taking note of the
problem was of the view that seeking unwarranted adjournment when witnesses are present in
the court without making any other arrangements for their examination is a dereliction of
advocate's duty to the court and such dereliction if repeated, would amount to misconduct of
the advocate concerned. It is for the Bar to come forward to sort out this problem and refrain
from seeking adjournment unless absolutely unavoidable. On the issue of adjournments in
Rajdeo Sharma v. State of Bihar102 the Court point out that all the trial judges need to comply
with Section 309 103 of the Cr.P.C.1973. But it is rarely followed.
c) Service of summons
Service of summons upon the parties or the witnesses is probably the most important step in
progress of the case and consumes a lot of time of the Court. The cases are frequently
adjourned on account of non-service of the parties or witnesses. The normal practice is to serve
the summon through a process server. Complaints are often made that the process server
connives with one party to the case and on that account does not get the service affected. Most
of the times, the defendant is interested in delaying the case, and in connivance with him the

101
2001) 6 SCC 135
102
A.I.R.1998 SC 3208
103
Section 309. Power to postpone or adjourn proceedings. (1) In every inquiry or trial, the proceedings shall be
held as expeditiously as possible, and in particular, when the examination of the witnesses has once begun, the
same shall be continued from day to day until the witnesses in attendance have been examined, unless the Court
finds the adjournments of the same beyond the following day to be necessary for reasons to be recorded.
26
process server makes an incorrect report such as the person summoned not being available or
the house having been found locked.104
As regards criminal cases, it has been experienced that inability of the prosecution to
serve and produce the witnesses is the biggest cause for delay in the trial of criminal cases.
Many a times the accused deliberately obstructs service of summons upon the witnesses in
connivance with the process server of the police station. Sometimes it isdone with a view to
gain time to win over the witness. With the passage of time, sometimes the witness changes his
place of residence and chances of serving the summon upon him becomes remote and the
investigating officers get transferred by the time the case comes up for trial. 105
d) Strike by Lawyers
The strikes by lawyers is ever heard of legal profession. It is essentially a service oriented
profession. Though the entry to the profession can be made merely by acquiring the requisite
qualification, the honour as a professional can be maintained by its members only from their
conduct, both in and outside the court. As responsible officers of the court, they have an
overall obligation of assisting the court in a just and proper manner in the administration of
justice. In Harish Uppal v. Union of India106 a Constitution Bench of the Supreme Court
declared that the lawyers have no right to strike or to give a call for boycott not even of a token
strike. The Sections affected by the strikes namely the courts as well as litigants, are innocent
and have done nothing wrong to the advocates. Why should they be then targeted by lawyers
going on strikes and abstaining from work? When the workmen go on strike, they target the
management on account of injustice caused to them. When government servants are on strike,
they want it to listen to their grievances but in case of strike by lawyers generally, the
grievance is neither against the court nor against the litigating public. It is high time, the
lawyers realise the undesirability of strikes and the immense damage they cause not only to the
system but even to their own credibility.
e) Inadequate strength of judges
In spite of the growing volume of the court work, the strength of the judiciary has not been
increased proportionally. The Law Commission in its 120th report submitted in 1987 examined
the problem of understaffing of judiciary and recommended 50 judges per million of

104
Dr.K.N.Chandrashekharan Pillai, R.V.Kelkar’s Criminal Procedure, 5th edn, ( Lucknow, Eastern Book
Company, 2008), pp.46-47
105
Ibid.
106
(2003) SCC 45
27
population instead of the present number 13.5. However, the suggestion has had little effect.
Even the existing judge strength is reduced further when judicial vacancies are not filled
promptly.
In L.Babu Ram v. Raghunathji and others107 while interpreting Article 39-A of the Indian
Constitution, Supreme Court held that social justice would include “legal justice” which means
that the system of administration of justice must provide cheap, expeditious and effective
instruments for realisation of justice for all sections of the people irrespective of their social
and economic position or their financial resources.
To administrator rule of law and to ensure speedy justice certain necessary steps need to be
taken by the State. In case of civil matters there are alternative options available such as
alternative dispute resolution mechanisms, 108 thus there is a procedure by which pendency of
cases can be tackled. However such a facility is not available in administration of criminal
justice. There is a need to evolve an alternative approach of resolving criminal cases in a
constructive manner. Compounding of Offences 109 of less serious nature and Plea Bargaining
are two areas, which can help to speed up the trial and increase the conviction rate.
Section 320 of the Cr.P.C provides for Compounding of Offences. Part one of the provision
gives a list of offences which can be compounded without the consent of the Court while
second part provides compounding of serious offences with the Court’s permission. If an
offence falls beyond the scope of compounding, and where the trial is necessitated the accused
must get a favourable and fair opportunity to voluntarily plead guilty. In the year 1991 the Law
Commission of India in its 142nd report recommended the need to introduce the concept of
concessional treatment for these who choose to plead guilty without any bargaining under the
authority of law. The Report had outlined a scheme for plea bargaining in India.
In its most traditional and general sense, “plea bargaining” refers to pre-trial negotiations
between the accused, usually conducted by the council and the prosecution during which the
accused agrees to plead guilty in exchange for certain concessions by the prosecutor.110 Plea
bargaining consists of the exchange of official concessions for a defendants act of

107
A.I.R. 1976 SC 1734
108
It includes Negotiation Mediation, Conciliation and Arbitration.
109
Criminal Procedural Code 1973, Section 320
110
The Law Commission of India, 142nd Report on Concessional treatment for offenders who on their own
initiative choose to plead guilty without any bargaining. Government of India 1991. Para 3.1
28
self-conviction.111 It is any agreement by the accused to pled guilty in return for the promise of
benefit.112 The parties to the agreement will usually be the accused and prosecutor, but it is
also possible for the police or the court to be party to plea bargaining.113 Plea bargaining falls
into two distinct categories depending upon the type of prosecutorial concession that is
granted.
First category is “charge bargaining” which refers to a promise by the prosecutor to reduce
or dismiss some of the charges brought against the defendant in exchange for a guilty plea.
The Second category is “sentence bargaining” which refers to a promise by the prosecutor to
recommend a specific sentence or to refrain from making any sentence recommendation in
exchange for a guilty plea. Both methods affect the dispositional phase of the criminal
proceedings by reducing defendant’s ultimate sentence. 114
Until 2005-criminal jurisprudence
in India failed to recognise the concept of plea bargaining.
However the seed of process of Plea bargaining is found in Section 206 (1) and Section 206
(3) of the Code of Criminal Procedure, 1973115 and Section 208(1)116 of the Motor Vehicles
Act 1988 which enable the accused to plead guilty for petty offences and pay small fines where
upon the case is closed. But there is no bargaining between the prosecutions on the one hand
and the accused on the other.
5.3 Approach of the Indian Judiciary-Prior to 2005
There were some reservations with respect to introduction of plea bargaining in India. Issues
like illiterate litigant, prosecution pressure on innocent persons, incidents of higher crime rates,
corruption in the investigation agency and the Apex Court considers the concept of plea
bargaining to be a violative of right to have a full and fair trial and it is not in accordance with
the procedure established by law hence if it violates Article 21 of the Constitution of India. 117

111
Albert W. Alschuler,“ Plea Bargaining and It’s History” 79 Columbian Law Review,( 1979) , p.3
112
Peter Clark,“ The Public Prosecutor and Plea Bargaining”, 60 Australian Law Journal, (1986), p.199
113
C.S.Patil,“ Due process analysis of Plea Bargaining,”1, Kerala University Journal of Legal Studies,
(1998), p.186
114
Supra note 60.
115
Provisions empower the Magistrate to impose fine in case of petty offences after pleading guilty.
116
Magistrate may impose small fine in petty offences even in the absence of accused after pleading guilty.
117
Muralidhar Megharaj v. State of Maharashtra, A.I.R. 1976 SC 1929
29
 The Indian judiciary has been reluctant in applying this concept prior to the 2005
amendment of the criminal laws and has on several occasions rejected the concept of plea
bargaining even after several recommendations of Law Commission of India. It is termed as
immoral compromise in criminal case, or trading out in India. The moral question dominates
the criticism of plea bargaining concept. While Law Commission of India was continuously
researching and recommending introduction of Plea Bargaining, the Supreme Court of India
was questioning its moral base and apprehending its consequences because of dishonest
circumstances prevailing around.
This was evident since the Courts continued giving decisions unfavourable to plea
bargaining even after such recommendations. The earliest case in which the concept of plea
bargaining was considered by the Supreme Court was Madanlal Ramachandar Doga v. State
of Maharashtra118 in which it observed “In our opinion, it is very wrong for a court to enter in
to a bargain of this character. Offences should be tried and punished according to the guilt of
the accused. If the court thinks that leniency can be shown on the facts of the case it may
impose a lighter sentence”.
In Ganeshmal Jasraj v. Government of Gujarat and another119 the Apex Court considered
the effect of plea bargaining on evidence and order of conviction when it observed “The entire
approach of the court to the assessment of the evidence would be likely to be different when
there is an admission of guilt by the accused and in the circumstances, it would not be right to
sustain the conviction of the appellant”.
Subsequently in Kasambhai Abrehmanbhai Sheikh v. State of Gujarat120 the Court held
that, “it would be contrary to public policy to allow a conviction to be recorded against an
accused by inducing him to confess to a plea of guilty on an allurement being held out to him
that if he enters plea of guilty, he will be let of very lightly. Such a procedure would be clearly
unreasonable, unfair and unjust and would be violative of Article 21 of the Constitution. It
would have the effect of polluting the pure found of justice because it might induce an
innocent accused to plead guilty to suffer a light and in-consequential punishment rather than
go through a long and arduous criminal trial.”

118
A.I.R. 1968 SC 1267
119
A.I.R. 1980 SC 264
120
A.I.R. 1980 SC 854
30
 In Kachhia Patel Shamtilal Koderlal v. State of Gujarat and another 121 the Court held that
practice of plea bargaining is unconstitutional, illegal and would tend to encourage corruption,
collusion and pollute the purity of justice. In State of U.P v Chandrika122 again the Court held
that plea bargaining is not recognised and is against public policy under the Criminal Justice
System of India and that the accused cannot be allowed to bargain with the Court that on his
pleading guilty and admission of guilt, his sentence will be reduced. But it was Gujarat High
Court that recognised the utility of thismmethod.
In State of Gujarat v. Natwara Harchandji Thakor123 as an alternative measure of reprisal to
deal with huge arrears in criminal cases, the Court reasoned the change as “the very object of
law is to provide easy, cheap and expeditious justice by resolution of disputes, including the
trial of criminal cases and considering the present realistic profile of the pendency and delay in
disposal in the administration of law and justice, fundamental reforms are inevitable. There
should not be anything static. It can thus be said that it is really a measure and redresses and it
shall add a new dimension in the realm of judicial reforms.”
5.4 Views of the 12th Law Commission of India
It is in such circumstances that the problem of mounting arrears of criminal cases and
unreasonable delays in disposal thereof engaged the attention of the 12th Law Commission of
India which submitted its 142nd Report124 on “concessional treatment for offenders who on
their own initiative chose to plead guilty without any bargaining” considered the question of
introduction of the concept of connectional treatment for those who chose to plead guilty by
way of plea bargaining. In its report Commission opined that a scheme for granting prayer for
concessional treatment made by accused pleading guilty voluntarily requires to be introduced
in the criminal justice system of India by enacting a legislation which gives statutory
recognition and authority to the scheme. 125
The Commission felt that a sample survey should be made and well-informed opinion
gathered within the country before finally taking a decision in the matter. The Commission
thought that opinion may be gathered by contacting members of the Bar and Bench in four

121
(1980) 3 SCC 120
122
A.I.R. 2000 SC 164 / 2000 Cri. L. J. 384
123
(2005) Cr. L. J. 2957
124
Submitted on 22ndAgust 1991 to the Government of India.
125
142nd Report of the Law Commission of India, 1991. p.11
31
States and one Union Territory. Accordingly, Andhra Pradesh, Karnataka, Maharashtra and
Uttar Pradesh and the Union Territory of Delhi were selected by way of a sample survey for
the purpose of eliciting opinion not only on the basic question whether the concept of "plea-
bargaining" should be introduced in our criminal jurisprudence. 126
Basically two questions arose for consideration. The first question was whether the scheme
of "plea-bargaining" deserves to be introduced in the Indian Criminal Jurisprudence? If the
answer to this question is 'No', further questions do not arise. The second basic question, if the
answer to the first question is in the affirmative, then whether the scheme should be applied to
all categories of offences without any discrimination or only to specified offences?127
Out of the persons whose views were recorded personally, 65 persons expressed the view
that it would be appropriate and beneficial to introduce the concept of "pleabargaining"
whereas 32 persons indicated their mind "against" the introduction of the concept. Out of the
65 persons who reacted "favourably" to the introduction of the concept, 27 persons were of the
view that the scheme could be applied to 'all' offences without discrimination the remaining 38
persons qualified their view by adding a rider. According to them the scheme could be applied
to only specified offences. Particularly these persons hold the view that the scheme should not
be extended to major offences and economic offences. There is again a wide divergence in the
concept of "major offences". Some are of the view that the exclusion should be only of
offences which are liable to be punished by death sentence of life imprisonment; some put it as
offences for which imprisonment is more than 10 years; yet others put it as offences punishable
with imprisonment for 7 years and more. Such are the views of those persons favourably
disposed towards the concept being introduced in our criminal jurisprudence. There is an
almost near unanimity in the view that the scheme should not be extended to socioeconomic
offences and offences involving moral turpitude. 128
Majority of the judicial officers expressed their views in favour of introduction of the
concept.129 Out of the 242 officers, 41 officers are in favour of the introduction of the scheme
to “all offences” whereas 201 officers expressed themselves against extension of the principle
to all offences. The 201 officers who expressed themselves against the application of this

126
Ibid., pp. 11-12
127
Supra note 80., p.11
128
Ibid.
129
Ibid.
32
scheme to major offences hold the view that it can be applied to less serious offences. They are
willing to classify less serious offences as offences for which imprisonment is less than seven
years and offences for which imprisonment 130 is seven years and more and offences which are
liable for punishment with death or life Imprisonment. The survey reinforces the view that an
improved version of the practise suitable to law and legal ethos of India needs to be considered
with seriousness and with a sense of urgency.
The justification for introducing the scheme was that;
i) It is not just and fair that an accused who wants to make amends or an
accused who is honest and candid enough to plead guilty should be
treated on par with an accused who claims to be tried at consideration
time-cost and money cost to the community.
ii) It will help the accused who have to remain as under-trial prisoners
awaiting the trial as also other accused on whom the sword of an
impending trial remains hanging for years together to obtain speedy
trial with attendant benefits like end of uncertainly, saving in
litigation cost, saving in anxiety cost, saving avoidable visits to
lawyer’s office and to court on every date of adjournment.
iii) It will without detriment to public interest reduce the backlog of
cases, breaking burden of the court cases which have already assumed
menacing proportions.
iv) It will reduce congestion in jails.
The report also opined that in the United States of America nearly 75% of the of the
total convictions are secured as result of plea bargaining and under the present system 75%
to 90% of the criminal cases result in acquittals, plea bargaining is considered to be one of
the alternatives to deal with huge arrears of criminal cases. 131
Subsequently the 12th Law Commission of India submitted its 154th Report in the
year 1996.132 The Commission gave its opinion that it was essential to make appropriate
amendment in the Code of Criminal Procedure 1973, particularly for rendering speedy
justice. Accordingly it recommended that the concept of plea bargaining may be made

130
Ibid.
131
154th Report of the Law Commission of India, p.51
132
Submitted on 22ndAgust 1996 to the Government of India.
33
 applicable as on experimental measure to offences which are liable for punishment with
imprisonment of less than seven years and / or fine including offences covered by section
320 of the Criminal Procedure Code, that plea bargaining should however not be available
to habitual offenders, those who are accused of socio-economic offences,offences against
women and children, it can be claimed at any stage after the cognizance is filed by the
investigating agency in police cases and in respect of private complaints at any stage after
the cognizance is taken. Order shall be final and no appeal shall lie against such an order
passed by the court accepting the plea and that a separate chapter XXI A on plea bargaining
be incorporated in the Code of Criminal Procedure on these lines. 133 The 177th Report of the
Law Commission also sought to incorporate the concept of plea bargaining as suggested in
the 154th report which gave its opinion on suffering of under trial prisoners. 134
These recommendations of the Law Commission finally found support in the Report
of the Justice Malimath Committee on Reforms of the Criminal Justice System 2003135
which stated that plea bargaining being a means for the disposal of accumulated cases and
expediting the delivery of criminal justice should be introduced.

5.5 Legislative Response

Based on the above recommendations, the legislature initiated a momentous reform. An
endeavour has been made to evolve such a scheme of plea bargaining, which allays the
fears and apprehension entertained by the Indian judiciary. Accordingly the provisions of
plea bargaining was incorporated through Criminal Law (Amendment)Act- 2005 in
Chapter XXI -A of the Code of Criminal Procedure 1973, which came in to force from
5thJuly 2006. This chapter consists of 12 sections from section 265 A to 265 L. Scheme
of Plea Bargaining introduced under Chapter XXI of the Criminal Procedural Code 1973
has the following features namely,

133
Supra note 86., pp.51-52
134
Submitted to the Government of India in the year 2001.
135
The government of India had formed a committee headed by Justice V.S. Malimath, former chief
justice of Karnataka and Kerala high courts for a through and comprehensive review of the entire
criminal justice system so that necessary and effective reforms can be made to improve the health of the
system. It also pointed out the success of plea bargaining system in the United States of America.
34
 1) Plea bargaining can be claimed only for offences that are penalised by
imprisonment below seven years.136
2) If the accused has been previously convicted of a similar offence by any court,
then he/she will not be entitled to plea bargaining. 137
3) Plea bargaining is not available for offences which might affect the
socioeconomic conditions of the country.138
4) Also plea bargaining is not available for offence committed against a women or a
child below fourteen years of age.139
5) Accused has to file an application for Plea Bargaining voluntarily. 140
6) If satisfactory disposition of the case has been worked out between accused,
complainant, victim and the prosecutor then the court has to prepare a report of such
disposition signed by the presiding officer and all participants. 141
7) Court shall award the compensation to the victim in accordance with the
disposition142 and the accused may be released on probation if the provisions of
section 360 Cr.P.C. or provisions of the Probation of Offenders Act are attracted.
With the insertion of new chapter the concept of plea bargaining became a reality
and part of our criminal jurisprudence.

136
Code of Criminal Procedure 1973, Section 265 A
137
Ibid., Section 265 B
138
Ibid., Section 265 A (2)
139
Ibid., Section 265 A(1) (b)
140
Ibid., Section 265 B
141
Ibid., Section 265 E
142
Ibid., Section 265 (B) (4) (a)
35
 6 Development of Plea Bargaining in America

The practice of plea bargaining began in the western countries and is prevalent
particularly in United States of America (USA), the United Kingdom and Australia. In
USA plea bargaining has gained very high popularity, where as it is applied only in a
restricted sense in other Countries. 143 In USA as many 90% of all criminal cases are
disposed of through guilty pleas and most of these are through plea bargaining between
prosecution and the defence, in which the prosecutor makes charge or sentence
concessions in exchange for a plea of guilty rather than by a jury trial. 144 Courts in USA
have assumed that as judicial recourse become increasingly burdened, guilty pleas and
plea bargaining are essential to the efficient administration of criminal justice. 145

6.1 Early History of the Guilty Plea

The practice of Plea Bargaining in America goes back a century or more.146 Plea
bargaining is a concept that originated in the United States and it has evolved over the
ages to become a prominent feature of the American Criminal Justice System. 147 Charge
and sentence concessions to secure pleas of guilty are and always have been part and
parcel of American criminal justice system. 148Apparently originated in seventeenth
century England as a means of mitigating unduly harsh punishment. Legal treatises and
case reports indicate that for many centuries Anglo-American courts did not encourage
guilty pleas but actively discouraged them. 149 Blackstone’s Commentaries on the Laws of
England observed in the mid-eighteenth century that the courts were “very backward in
receiving and recording a guilty plea and generally advice the prisoner to retract it.”150 In
the early nineteenth century, Jeremy Bentham declared 151

143
Devina Gupta , “Plea bargaining...A unique remedy to reduce backlog in Indian Courts,” Criminal
Law Journal,1, (2010), p.66
144
K.U.K.Santhy, “Plea bargaining in US and Indian Criminal Law, confessions for
concessions,” NALASR Law Review, Vol.7, No.1, (2013), p.86
145
Ibid.
146
142nd Report of the Law Commission of India.1991.p.5
147
Subhas Rewari and Tanny Agrawal, “Wanna make a deal ? The Introduction of Plea bargaining
inIndia,” 2 Criminal Law Journal, (2009), p.12
148
Albert W Alschuer, “Plea bargaining And It’s History”, 79 Colombia Law Review, 1 (1979), p. 2
149 Ibid., p.2
150 Ibid., p.5
151 J.Bentham, Rational of Judicial Evidence, London. 1927, p.316

36
 “In practice, it is grown into a sort of fashion, when a prisoner has entered a plea of
guilty, for the judge to endeavour to persuade him to withdraw it, and substitute the
opposite plea, the plea of not guilty in its place. The wicked man, repenting on his
wickedness, offers what atonement is in his power: the judge, the chosen minister of
righteousness, bids him repent of his repentance and in place of the truth substitute a
barefaced lie.”Bentham urged abolition of the guilty plea and the substitution of
more careful and rigorous examination of the defendant an examination designated
to guard him against undue conviction, brought upon him by his own imprudence.”

6.1.1 The Judicial Discouragement of Confessions

From the earliest days of the common law, it has been possible for an accused
criminal to convict himself by acknowledging his crime. 152 “Confession” was in fact a
possible means of conviction even prior to the Norman conquest of England. 153 When
common-law treaties first adverted to the guilty plea, they indicated that the courts were
extremely hesitant to receive it. Official reports of guilty plea cases remained infrequent
until the last quarter of the 19thcentury, but Professor John H. Langbein’s recent study of
the Old Bailey during the late seventeenth and early eighteenth centuries offers a glimpse
of the English criminal justice system in operation.154 Professor Langbein discovered that
during eighteenth century ordinary jury trial at common law a judge dominated. Lawyer
free procedure conducted so rapidly that plea bargaining was not necessary. The
surviving sources show that when the Old Bailey sat, it tried between twelve and twenty
felony cases per day. 155 Indeed it was not until 1794 that a trial “ever lasted for more than
one day and the court seriously considered whether it had any power to adjourn.” 156
The most important factor that expedited jury trial was the want of counsel.
Neither prosecution nor defence was represented in ordinary criminal trials. The accused
was forbidden counsel; the prosecution might be conducted by a lawyer. The victim or
other complaining witness aid by the lay constable and lay justice of the peace,
performed the role we now assign to the public prosecutor, gathering evidence and
presenting it at trial. 157 As a result, jury trial was not yet protracted by the motions,
152
Supra note 89., p.7
153
Ibid.
154
Langbain, “The Criminal Trial before the Lawyers,” 45, U.Chi.L.R. (1978), p.263
155
Ibid.
156
Prof.Jhon H Langbein, “Understanding Short History of Plea Bargaining,” Law and Society Law
Review,(1978), p.261
157
Ibid.,p.262

37
manoeuvres, and speeches of counsel that afflict the modern trial.
Professor Langbein discovered that jury trials were extremely rapid in an era
when neither party was represented by counsel, when an informally selected jury from
the courtroom and when the law of evidence was almost entirely undeveloped. The
common law of evidence which has injected such vast complexity in to modern criminal
trials was virtually non-existent as late as the opening decade of the eighteenth century. 158
The presentation of evidence and the cross-examination of witnesses and accused took
place in a fashion that was business-like but lacked time consuming stiffness of a modern
adversary trial.
The most efficient testimonial resource available to a criminal court is the
criminal defendant. He has been close enough to the event to get him prosecuted. In
modern Anglo-American procedure there is a principle of privilege against self-
incrimination in a way that often encourages the accused to rely entirely upon the
intermediation of the counsel and say nothing in his own defence. But in the period
before the accused had counsel, there could be no practical distinction between his roles
as defender and as witness. The accused spoke continuously at the trial, replying to
prosecution witnesses and giving his own version of the events.159
Finally there was as yet virtually no appeal in criminal cases. 160 Accordingly, the
familiar modern machinations of counsel directed to provoking and preserving error for
appeal were unknown. In such system of trial as rough and rapid there was no particular
pressure to develop non-trial procedure, or otherwise to encourage the accused to waive
his right to jury trial. It is usual for the judge to discourage an accused from pleading
guilty, and to advise the party to “plead not guilty” and put himself upon his
trial.Accordingly administrative pressure for plea bargaining was small Jury trial was a
summary proceeding. Over the intervening two centuries the rise of the adversary system
and the related development of the law of evidence has caused common law jury trial to
undergo a profound transformation and made it unworkable as a routine dispositive
procedure.
The case of Stephen Write in 1743 seems especially revealing. 161 Write
announced that he would plead guilty to robbery in order to spare the court trouble, and

158
Ibid.,p.263
159
Ibid.,p.264
160
Ibid., p 264
161
Ibid., p.265

38
expressed hope that the court and jury would recommend executive commutation of the
death sentence mandated for this crime. The Court could not take notice of any
favourable circumstances in this case unless he agreed to stand trial. Write then yielded to
the court advice.
The earliest reported American decision on guilty plea reveals that American
practice was not different.162 In Massachusetts in 1804, a twenty year old black man was
accused of raping a thirteen year old white girl, breaking her head with a stone, and
throwing her body in to the water, thereby causing her death. When the defended pleaded
guilty to indictment of rape and murder, the court informed him of the consequences of
plea, and that he was under no legal or moral obligation to plead guilty but he had a right
to deny the several charges and put the government to the proof of them. Court directed
the clerk not to record his pleas at present.163After examination of the defended on oath,
full enquiry directed to record the plea on both indictments. 164 The report concluded that
the defendant “has since been executed”.
The United States Supreme Court first upheld a guilty plea conviction in
Hollinger v. Davis 165 decided in 1892, the court observed “the trial court refrained from
at once accepting plea of guilty, assigned him counsel, and twice adjourned, for a period
of several days, in order that he might be fully advised of the truth, force and effect of his
plea of guilty”.

6.1.2 The Requirement of Voluntariness

Accused has to plead guilty voluntarily. First English treatise Stand Forde’s Pleas
of the Crown published in the year 1560, declared that a guilty plea arising from “ fear,
menace, or duress should not be recorded. Plea must proceed freely, and of the
defendants own goodwill. 166 Guilty pleas were infrequent and even voluntary guilty plea
discouraged, the courts articulated the meaning of the concept of voluntariness
exclusively in cases involving out-of-court confessions. Any confession obtained “by
promises of favour’’ to be inadmissible. 167 A confession forced from the mind by the
flattery of hope, or by the torture of fear, comes in so questionable a shape that no credit

162
Commonwealth v. Battis, (1804), 95
163 Ibid., p.96
164
Ibid.
165
146 U.S. 314 (1892)
166
Langbein, “The Criminal Trial before the Lawyers”, 45, U.Chi.L.Rev., (1978), p.263
167
Alschuler, “Plea Bargaining and It’s History.” 79, Colombian Law Review, (1979), p.12

39
should be given to it. Any confession obtained by a direct or implied promise however
slight could not be received in evidence. Even the offer of a glass of gin was a “promise
of leniency” capable of coercing a confession.
The basic rule is that the promise of leniency by a person in authority invalidates
an out-of-court confession. If the rule is applied to pleas of guilty, every bargained plea
would of course be invalid. This legal phenomenon that we call a guilty plea has existed
for more than eight centuries, the term “guilty plea” came in to common use only about
one century ago. During the previous 700 years the term “guilty plea” was simply called
a confession.168 Common-law treatises reveal that a “judicial confession” was not
considered a pleasing at all. The work of John Frederick Arch bold analysis the
“confession” in to four kinds: extra Judicial confessions, confessions during preliminary
interrogations by magistrates, confessions that can be called as pleas of nolo contender,
and confessions that can be called as pleas of guilty. All of these several species of
confessions to be of effect must be made voluntarily. 169
Even upto mid-nineteenth century the term guilty plea was not referred. Various
treatises referred the terms “Judicial admissions’’ as a form of confession. 170 The early
decisions of the voluntariness of confessions, coupled with the fact that pleas of guilty
were not regarded differently from other confessions, strongly suggest that the courts
would have condemned the practice of plea bargaining had they had occasion to do so.
6.2 Rise of Plea Bargaining

Even a sketchy history of the guilty plea requires mention of some early practices
that resembled plea bargaining but they did not involve the exchange of leniency for self-
conviction. In an early form of diversion from the criminal process, a felon who fled to a
church without being captured was entitled to sanctuary there. If he then confessed his
crime, he was permitted to “adjure the realm’’- that is, suffer exile and a forfeiture of
goods rather than conviction and judicially imposed punishment. 171 In addition criminal
cases were commonly compromised through the payment of money for the victim’s
refusal to prosecute. “compounding’’ as this practice was called, was a criminal offence
from the earliest days of the common law and remained a problem for centuries. 172

168
Alschuler, “The Supreme Court, the Defense Attorney, and the Guilty Plea,” 47, University of
ColombiaLaw Review , (1975), p.52
169
F.Wharton, Law of Evidence in Criminal Issues, 8th edn., (1980), p.638
170
Supra note 89., p.14
171
Ibid.
172
Ibid.

40
 The practice of “approvement’’ is another attitude towards plea bargaining in the
Anglo-American jurisdiction. An accused felon might confess his guilt and offer to
“appeal’’ or bring a private prosecution- against other participants in the crime with
which he was charged. 173 A judge would then balance the benefits of the proposed
prosecution against the danger of pardoning the accused, for if the defendant was
successful in his appeal, he would be entitled automatically to a pardon. Whether to
accept the defendants offer to become an approver was “a matter of grace and
discretion’’. 174
Even such limited and regularized forms of bargaining was criticised on the
ground that by these approvements the public will not get the benefit of discovery of truth
and conviction of real offenders. “Approvement’’ remained a part of the common law
and judges regarded it as “very material’’ in shaping a closely related form of bargaining
for information that persisted in to the late nineteenth century. 175 Courts opined that the
power to grant leniency in exchange for information was by its nature a judicial power.
In 1878, however, the United States Supreme Court noted that a number of
American jurisdictions had permitted the public prosecutor to displace the trial judge in
deciding whether to allow an accomplice to testify and thereby gain pardon. In endorsing
prosecutorial bargaining for testimony, the Court plainly did not endorse plea bargaining.
176
In Whiskey Case the American Supreme Court discussed prosecutorial bargaining for
testimony. In Whiskey Case a federal prosecutor had struck a complex bargain. In this
case the defendants had agreed to plead guilty to one count of criminal indictment, to
testify fully concerning a corrupt agreement involving internal revenue officials, and to
withdraw their defensive pleas in a civil condemnation case. In exchange, the prosecutor
had agreed to forgo prosecution of other counts of the indictment and to forgo action on
some other civil claims as well.
Whiskey case reveals that the American Supreme Court did permit a sacrifice of
public interest in punishing a single offender in order to gain his assistance in convicting
other criminals, and it devised an open and regularized form of bargaining to accomplish
this result. An offender ordinarily cannot reveal the role of his accomplices in a crime
without at the same time revealing his own, and when this offender is willing to accept a

173
Supra note 111., p.15
174
Ibid.
175
Ibid.
176
99 U S 594 ( 1878 )

41
reduced punishment in exchange for his testimony, to insist that he be pardoned entirely
may seem to involve a needless sacrifice of public interests. When defendants were
induced to testify against their accomplices, Anglo-American Courts refused to convict
them on the bases of their bargained confessions. The Courts instead insisted that these
defendants be given “transactional immunity.” 177

In these cases plea bargaining seemed most likely to occur, it did not occur which
suggest that plea bargaining did not occur with significant frequency in other cases. The
concept of plea bargaining historically rise in the form of “compounding of offences,”
“approvement”, “transactional immunity’’ and “Immunity from the punishment.’’ When
one offender offered his help in convicting others, the usual result was either refusal of
the offer or immunity from punishment, without the entry of bargained plea.

A cursory look at the court records reveals that disposition by means of guilty
pleas are phenomena of the late nineteenth and early twentieth centuries. Before the
twentieth century, the vast majority of criminal cases in Angle-American Jurisdictions
were disposed of by jury trial rather than by guilty plea. Guilty pleas were considered
rather ill-advised. 178 Guilty plea and plea bargaining in both United States and the United
Kingdom were relatively rare until the latter half of the nineteenth century. 179 Their use
increased dramatically during the decades before and after the American civil war and
soon reached, during the early decades of 20th century, the prevalence associated with
contemporary times.

6.2.1 Emergence of Plea Bargaining Before the Civil War

For most of the history of American legal system, confessions and guilty plea
were discouraged, but four specific indications of plea bargaining prior to American
civil war have come in to picture. First Professor John H. Langbein’s study of the
preliminary examination in renaissance England discussed a Statute enacted in 1485
that authorised the commencement of prosecutions for unlawful hunting before justice
of the peace. As Langbien interpreted this Statute it authorised a justice to convict the
defendant of a summery offence when he confessed his crime. 180 A second indication

177
Ibid.
178
Albert W. Alschuler, “The Defense Attorney’s Role in Plea Bargaining,”84,Yale Law Journal,
(1975),p.1179
179
John H.Langbein, “Shaping the Eighteen Century Criminal Trial” 50 ,University of Chicago Law
Review, 1, (1983), p.211
180
J.Langbain“ Prosecuting Crime in the Renaissance; England, Germany, France”. U.C.L.R.(1974), p.70

42
of plea bargaining prior to civil war appears in the findings of Professor J.S.
Cockburn’s examination of sane 5000 indictments at the Home Circuit assizes
between 1558 and 1625.181 In this period defendants were sentenced after their
confession without further process. In some cases indictments confessed had been
altered, burglary charges had been reduced to larceny charges. These charge
reductions seemed plainly to speak plea bargaining. They occurred at a time when
judges travelling the counties of the Home Circuit faced “a rising crime rate,
inadequate local law enforcement system, negligent and absente justices of the peace,
ignorant jurors and a high acquittal rate.”182
In a study of criminal justice in colonial Massachusetts, Professor David H
Flaherty noted third instances of plea bargaining, a 1749 case in which three
defendants pleaded guilty to theft from a brigantine after the attorney general
announced that he would not prosecute them for the burglary charged in the
indictment.183 He reported “guilty pleas were uncommon for the crimes tried at the
Assizes, even if a defendant had signed a confession upon a preliminary examination;
he normally rescinded it and sought trial by jury.” 184
A French Jurist Charles Cottu, observed the English courts during the early
19th century and his report for the French Government provides a fourth indication of
plea bargaining. Cottu reported that when a defendant was charged with forging bank
notes, two indictments were prepared, one for forgery and other for possessing forged
notes with the intention of using them to defraud. Punishment for the offence was
death. Upon his confessions and failureness on the part of the banks solicitor, the jury
found the defendant not guilty of the capital offence. 185

6.2.2 Early Judicial Response to Plea Bargaining

It was only after the civil war (1861 to 1865) that cases of plea bargaining began
to appear in American Appellate Court Reports. In the first such case, which arose in
Tennessee in 1865, the defendant pleaded guilty to two counts of gambling. In
accordance with an agreement that he had enforced with the prosecutor, eight other

181
Cuckburn, Trial by the Book, Fact and Theory in the criminal process,1558-1625 in Legal Records and
the Historian.(J. Baker. ed. 1978), p.7
182
Ibid.
183
Supra note 85., p.17
184
Ibid.
185
Ibid., p.18

43
charges of gambling were dismissed. The defendant was fined twenty five dollars on one
count and ten dollars on the other, the Tennessee Supreme Court observed “by the
Constitution of the State, the accused in all cases has a right to a speedy public trial and
the right cannot be defeated by any deceit or device whatever.” 186
An 1874 case, Insurance Co. v. Morse,187 illustrates more strikingly the courts
reluctance to permit bargained waivers of procedural rights. It amounts to waiver of the
right to have full trial. Every citizen is entitled to resort to all courts of the country, and to
invoke the protection which all the laws or all those courts may afford him. A man may
not barter away his life or his freedom or his substantial rights.188
Entering a guilty plea is greatly prevalent in many American States. In 1839, in
New York State, one out of every four criminal cases ended with a guilty plea. By the
middle of the century there were guilty pleas in half the cases. In Alameda County, one
out of three felony defendants pleaded guilty. In 1920s guilty pleas accounted for 88 out
of 100 convictions in New York City, 85 out of 100 in Chicago, 70 out of 100 in Dallas
and 79 out of 100 in Des Moines, Iowa. It has kept its dominance ever since. In short,
there is a decline in number of trials by jury in America from the early 19th century as a
sizeable section of public opinion favours the practise. Five reasons are advanced by its
support:189
1) Most people arrested, they say, are guilty any way; why bother with a trial?
2) Why waste public money?
3) "Plea-bargaining" is a compromise; both sides give a little and gain a little.
4) Trials consume time and costs.
5) It is best (for both sides) to avail it since on the one hand there is always a
chance that even if the defendant is guilty and the evidence is adequate there
is a chance of a slip up. On the other the defendant saves time and money and
earns a concession in the form of a less serious offence or sentence.

On the other hand a growing number of people in America feel that "Plea-
bargaining" is a disgrace and offer three criticisms viz ; 190

186
Swag v. State (1865)
187
87 U.S. 445 (1892)
188
Supra note 89., p.10
189
Supra note 84., p.5
190
Ibid.,p.6

44
 (1) "Law and order people" think, it shows too much softness towards
defendants. Dangerous criminals cop a plea and slip through the nets.
(2) Others claim that the process is unfair to the innocent.
(3) One study claimed that up to one-third of the people who plead guilty would
be acquitted if they went to trial.

Some people, however, think that while it does not mean that those who secured
acquittal were innocent of the crime, "plea-bargaining" provides only a legal excuse
where the evidence is weak. In any event, "plea-bargaining" makes a mockery of criminal
process. It does not fit into the image of due process. 191
Several prosecutors have tried to end "plea-bargaining". In WyneCounty,
Michigan, the prosecutor ordered his staff not to bargain in any case when defendant used
a gun. The Attorney General of Alaska in 1975 banned the practice of “plea-
bargaining.”192 With the public opinion being sharply divided in U.S.A., demands for
reform have been surfacing from many quarters. The system is in vogue in a number of
States even today and the number of trials settled by guilty pleas constitute a very large
proportion of the total decided cases.

191
Supra note 80., p.6
192
Ibid.

45
 Assumption is that ordinarily the innocent would not plead guilty. The Supreme
Court of the United States has explicitly approved the practice mainly on the assumption
that defendants who are convicted on the basis of negotiated pleas of guilt would ordinarily
have been convicted had they elected to stand trial.193 The principle consists of the promise
of reduction of charge from the one leveled against a defendant to a less serious charge or
of sympathetic treatment in sentencing. For the accused what is important is saving of
expenses (legal and otherwise) and the desire to start a new life after suffering the agreed
sentence as early as possible and also to avoid detention pending the trial. In most cases
some or all the considerations indicated hereinbefore that induced pleas of guilty.

6.3 The Growth of Plea Bargaining

The gap between these judicial denunciations of plea bargaining during the second
half of the 19th century and the practice of the courts of the turn of the century and
thereafter was the important period in the growth of plea bargaining practice in America. In
these courts, striking political corruptions apparently contributed to a flourishing practice
of plea bargaining.194 By 1914, there were accounts of a New York defense attorney whose
financial arrangement with a magistrate enabled him to “Stand out on the street in front of
the night court and dicker away sentences in this form: $300 for ten days, $ 200 twenty
days, $ 150 for thirty days.” 195
Corrupt motive and the misuse of power by the police
officers and the participants in the criminal justice system about plea bargaining process
had been the norm at the outset of their careers. 196 In its early stage, the practice of such
plea negotiation undoubtedly produced many satisfied customers, and serious judicial
review of the process was not conducted by the appellate courts.
During 1920’s a number of States and cities in America conducted surveys of criminal
justice which offered a complete picture of the working of America criminal courts. The
survey revealed a lopsided dependency of the plea of guilty; in Chicago, 85%
of all felony convictions were by guilty plea, in Pittsburgh 74; and in St.Louis 85. 197 The
surveys have led some defendants to plead guilty although they would not have been
convicted at trial. During this period both the percentage of convictions by the trial and the

193
Ibid.
194
Supra note 89., p.24
195
Ibid. Views of Prof. M.H.Haller, quoted by Albert W.Alschuler.
196
Supra note121., p.1185
197 Supra note 89., p.26
46
percentage of acquittals showed a sharp decline. 198A reward to defendants who waive their
right to trial lies at the heart of any system of plea negotiation, and many of the surveys
focused specifically on the nature of this reward. In Chicago in 1926, 78% of all guilty
pleas in felony cases were to offenses less serious than the offenses originally charged. The
rewards associated with pleas of guilty were manifested not only in the lesser offenses of
which guilty plea defendants were convicted but also in the lighter sentences that they
received.
Although plea bargaining had become a central feature of the American criminal
administration of justice by the 1920s, it had few apologists and many critics. Most of the
criticism came from the hawks of the criminal process 199rather than the doves.200 The
process of plea negotiation was criticized as “paltering with crime’’ and demanded the
immediate removal from the criminal courts. 201 It is a pretty direct encouragement to
crime. Those deserving extreme punishment are permitted to escape with suspended
sentence or with punishment all too inadequate for the crime committed. Owing to
defective criminal procedure the function of deference by threat is clogged. 202 Bargaining
prosecutors answered their critics by saying that they bargained for guilty pleas only in
weak cases that would be difficult to try.203Acknowledgement of guilt provides a sign of
repentance and that defendants who plead guilty should receive lighter sentences than
defendants who stand trial. 204
Growing caseloads did contribute substantially to the courts dependence on guilty
plea. The “crime wave’’ of 1960’s, produced in part by the post -world war II and by the
increased proportion of young people in American society led to expanded caseloads, and
as the volume of traditional crime increased, the courts also confronted other victimless
crimes in greatly increased numbers. These developments led to major administrative crises
in the courts. The volume of case- loads in criminal matters doubled from one decade to the
next, while judicial resources increased only slightly. 205

198
H. Fuller , Criminal Justice in Virginia, 81 (1931), p.56
199
Hawks represents attitude of persons who favours aggressive policy in administration of justice.
200
Doves represents attitude of persons who favours negotiation rather than violence.
201
Supra note 89., p.29
202
John H.Wagmore , “Juvenile Court v. Criminal Court,” 21, Yale Law Journal, (1926), p.375
203
Ibid.
204
Brady v. United States, 397 U S 742 (1970)
205
Supra note 89., p.35
47
 In 1967, both the American Bar Association Project on minimum standards for
criminal Justice and the Presidents Commission on Law Enforcement and Administration
of Justice proclaimed that, properly administered, plea bargaining was practice of
considerable value.206

6.3.1 Plea Bargaining as Due Process in Determining Guilt

The Sixth Amendment to the United States Constitution enshrines the fair trial
principle but it did not mention the practice of plea bargaining. The classic case of
adoption of plea bargaining is the case of assassination of Martin Luther King (Jr). In
1969 accused James Earl Ray pleaded guilty to the murder of Martin Luther King (Jr) to
avoid death penalty and got 99 years of imprisonment.207 Today the plea bargaining
become significant part of the criminal justice system in the United States as the vast
majority of criminal cases are settled by plea bargain rather than by jury trial. 208
Plea bargaining in the United States of America is now governed and regulated by
Rule 11 (a to h) of the Federal Rules of Criminal Procedure.209 The Courts have a duty to
discuss the consequences of a guilty plea with the accused in open court and to ensure that
accused has entered a guilty plea voluntarily and with full understanding of the
consequences of such agreement. U.S. Supreme Court upholds Constitutionality and
recognises the value of plea-bargaining. The Constitutional validity of "plea-bargaining"
has been upheld by the United States Supreme Court in Brady v. United States 210 Justice
White, who delivered the opinion of the Court, observed:

"The issue we deal with is inherent in the criminal law and its administration
because guilty pleas are not Constitutionally forbidden, because the criminal law
characteristically extends to judge or jury a range of choice in setting the sentence in
individual cases, and because both the State and the defendant often find it advantageous
to preclude the possibility of the maximum penalty authorised by law. For a defendant

206
Ibid.
207
Dr.Suman Roy, Law Relating to Plea Bargaining, 2nd edn.,(Allahabad, Orientation Publishing
Company, 2014), p.67
208
Roy was convicted on March 10th 1969. He later recanted his confession and tried unsuccessfully to
gain new trial.
209
Rule 11 reads ; “A defendant may plead not guilty, guilty, ,or with the consent of the court,
nolocontender.The court may refuse to accept a plea guilty, and shall not accept such plea or plea of
nolocontendor withoutfirst addressing the defendant personally and determining that the plea is made
voluntarily with understanding ofthe nature of the charge.”
210
297 U.S.742 (1970)
48
who sees slight possibility of acquittal, the advantage of pleading guilty and limiting the
probable penalty are obvious his exposure is reduced, the correctional process can begin
immediately, and the practical burdens of a trial are eliminated. For the State there are
also advantages the more promptly imposed punishment after an admission of guilt may
more effectively attain the objectives of punishment: and with the avoidance of trial,
scarce resources are conserved for those cases in which there is a substantial issue of the
defendant's guilt or in which there is substantial doubt that the State can sustain its burden
of proof. It is this mutuality of advantages that perhaps ex-plains the fact that at present
well over three-fourths of the criminal convictions in this country rest on the pleas of
guilty, a great many of them no doubt motivated at least in part by the hope or assurance
of a lesser penalty then might be imposed if there were a guilty verdict after a trial to
judge or jury."
The Supreme Court held that guilty pleas are valid if they are voluntary and
intelligent. There must be material to show that the guilty pleas voluntary, deliberate and
informed; the record must affirmatively disclose that a defendant who pleads guilty enters
his plea understandingly and voluntarily. It was observed by the Supreme Court that, a
guilty plea is more than an admission of past conduct; it is the defendant's consent that
judgment of conviction may be entered without a trial, a waiver of this right to trial
before a judge.
The Supreme Court further observed that "pleas of guilty made by some people
because their reach of a Statute law is alone sufficient reason for surrendering themselves
and accepting punishment, by others because apprehension and charge, both threatening
acts by the Government, far them into admitting their guilt, and by still others because the
post indictment accumulations of evidence may convince the defendant and his counsel
that a trial is not worth the agony and expense to the defendant and his family—are all
valid, and are not improperly compelled, in spite of the State's responsibility for some of
the factors motivating the pleas."
The Supreme Court also found that the award of lesser punishment pursuant to
please bargain is not invalid. It observed : "Although the fact that the prevalence of guilty
pleas as the basis of convictions is explainable because of the mutuality of advantage to
the defendant and the State does not necessarily validate such pleas nor the system which
produces them, nevertheless it is not unconstitutional for the State to extend the benefit of
49
a lesser penalty than after trial to a defendant who in turn extends a substantial benefit to
the State and who demonstrates by his crime and to enter the correctional system in a
frame of mind that affords hope for success in rehabilitation over a shorter period of time
than might otherwise be necessary”.211
The Supreme Court further observed "This is not to say that guilty plea conviction
holds no hazards for the innocent or that the methods of taking guilty pleas presently
employed in this country an necessarily valid in all aspects, his mode of conviction is no
fool proof than full trials to the court or to the jury. Accordingly, we take great
precautions against unsound results, and we should continue to do so, whether conviction
is by plea or by trial.”212
Validity of plea bargaining was also upheld by the United States Supreme Court
213
in Santobello v. New York' Chief Justice Auger, who delivered the opinion of the
Court observed that "Disposition of charges after plea discussions is not only an essential
part of the process but a highly desirable part for many reasons. It leads to prompt and
largely final disposition of most criminal cases; it avoids much of the corrosive impact of
enforced idleness during pre-trial confinement for those who are denied release pending
trial; it protects the public from those accused persons who are prone to continue criminal
conduct even while on pre-trial release; and by shortening the time between charge and
disposition, it enhances whatever may be the rehabilitative prospects of the guilty when
they are ultimately imprisoned.”
The Court highlighted the need for precautions by pointing out that “This phase of
the process of criminal justice, and the adjudicative element inherent in accepting a plea
of guilt, must be attended by safeguards to insure the defendant what is reasonably due in
the circumstances. Those circumstances will vary, but a constant factor is that when a
plea rests in any significant degree on a promise or agreement of the prosecutor, so that it
can be said to be part of the inducement or consideration, such promise must be
fulfilled.”In concurrent judgment Mr. Justice Douglas observed "these plea-bargains are
important in the administration of justice both at the State and at the Federal levels” and,
as the Chief Justice says, they served an important role in the disposition of today's heavy
calendars.214
The United States Supreme Court has reiterated the view, in the following cases

211
Brady v. United States, 297 U.S. 742 (1970)
212
Ibid.
213
404 U.S.257 (1971)
214
Supra note 168.
50
that, when properly administered, "plea-bargaining" is a proper method for administering
justice. In Hutto v. Ross 215
the Supreme Court observed, “If every criminal charge were
subjected to a full scale trial, the States and the Federal Government would need to
multiply by many times the number of judges and court facilities. Disposition of criminal
charges after plea discussions or plea-bargaining is not only an essential part of the
criminal process but a highly desirable part.”

216
In Chaffin v. Stynchcombe, the Supreme Court reiterated its earlier view in
Santobello case that the legitimacy of the practice of "plea-bargaining" cannot be doubted
and where properly administered, it is to be encouraged as an essential and desirable
component of the administration of justice.

In Blackledge v. Allison, 217 the Supreme Court noted that it was only recently that
"plea-bargaining" had become visible practice accepted as a legitimate component of the
administration of criminal justice and that it was not until the decision in Santobello that
lingering doubts about the legitimacy of the practice were dispelled. In this case the
accused was informed that is sentence would not exceed ten years in return for his
pleading guilty. He pleaded guilty to the charge of attempted robbery. He was sentenced
for twenty one years. In view of the state’s failure to live of up to its side of the plea
bargaining the Supreme Court held that the accused was entitled to be resentenced or to
with draw his guilty plea.
In Newton v. Rumere218 Justice Stevens of the U.S. Supreme Court observed. "The
net result of every plea bargain is an admission of wrongdoing by the defendant and the
imposition of the criminal sanction with its attendant stigma. Although there may be
some cases in which an innocent person pleads guilty to a minor offence to avoid risk of
conviction of a more serious charge, it is reasonable to presume that such cases are rare
and represent the exception rather than the rule the plea bargain represents a practical
compromise between the prosecutor and the defendant that takes into account the burdens
of litigation and its probable outcome as well as society's interest in imposing appropriate

215
50 L.Ed. 2nd 876.
216
1973) 412 US 17
217
52 L.Ed. 2nd 136
218
(1977) 49 US 545
51
punishment upon an admitted wrongdoer. The dependent admits wrongdoing for conduct
upon which the guilty plea is based and avoids further prosecution; the prosecutor need
not go to trial; and an admitted wrongdoer is punished all under close judicial
supervision. By simultaneously establishing and limiting defendant's criminal liability,
plea bargains delicately balance individual and social advantage."
It would be seen from the cases discussed referred here in above that the
reasoning which appealed to the Supreme Court was to an extent built on the assumption
that those who are induced to plead guilty would, in any event ordinarily be convicted.
The United States Supreme Court has expressed the view that "plea-bargaining" provides
advantages for both the defendant and the State. The Court has observed to the effect that
for a defendant who sees a slight opportunity of securing an acquittal the advantages of
pleading guilty and limiting the penalty is obvious. On the other hand from the stand
point of the State the plea which results in avoiding a full-fledged trial serves to conserve
the judicial and prosecutorial resources for being utilized only for those cases in which
there is substantial doubt that the State can sustain its burden of proof. The Supreme
Court further held "among the virtues, a guilty plea enhances what-ever may be the
rehabilitative process of the guilty when they are ultimately imprisoned."
Americans tend to view history as progress and to assume that throughout history
the law has afforded increasing dignity to persons accused of crime. The history of plea
negotiation however is a history of mounting pressure for self- incrimination. In 1978
American Supreme Court in Bardenkricher v. Hayes219 illustrated how for judiciary has
travelled. The prosecutor in this case offered to permit the defendant, a repeated offender
charged with uttering a forged check, to plead guilty in exchange for the recommendation
of a five year sentence. When the defendant rejected this offer, the prosecutor carried out
a trial that he had made during the negotiations to return to the grand jury and to obtain an
indictment under the Kentucky Habitual Criminal Act. The defendant was then convicted
at trial and the court imposed the life sentence that the Act required. The crime of uttering
a forged $ 88 cheque is “worth” five years and in which the crime of standing trial is
worth imprisonment for life. The road from common law principles to this decision has
indeed been long and Americans can hope that there are other yardsticks to enforce its

219
(1978) 434 US 357
52
criminal law.
The American Supreme Court’s reasoning was built on the assumption that those
who are induced to plead guilty would ordinary be convicted had they elected to stand
trial. 220 The Court felt that plea bargaining is desirable for it provides advantages both to
the defendant and the State.221 The American criminal justice system is no longer a trial
system but a plea bargaining system.

7. Development of Plea Bargaining in United Kingdom

The complex and often cross-border nature of white collar criminal cases often
leave the cost of investigation in the millions. Investigations are lengthy and involve
massive use of resources. All this before the case even gets to trial where there will be
further costs of court time, counsel fees and expert witnesses.
Prosecutions are costly and convictions are difficult to obtain. The Government
attributes the low conviction rates to the ignorance or credibility of jurors or the lack of a
plea bargaining system not withstanding that the Government has failed to implement a
coherent policy for policing white collar crime. The United Kingdom has suffered
decades of Royal Commissions, Law Commissions, Working Groups and One-
man/woman enquiries all recommending piecemeal remedies that, whether adopted or
ignored, have created a myriad of prosecution agencies, each of whom interpret policies
in their own way and none of whom succeed in fulfilling public expectations. The aim of
securing prosecutions simultaneously with cutting costs has, led the UK Government to
consider a new approach. At the same time as these European reforms, the Attorney
General has proposed the introduction of a formalized plea negotiation procedure into the
English criminal justice system. The aim of such a proposal is to encourage more
defendant stop plead guilty at an early stage in fraud cases as well as to cut the cost and
time involved in fraud trials and the investigations leading to trial.
It has long been the case in the United Kingdom that informal negotiations take
place. There are often held in private between defense lawyers and prosecutors. Despite
this, there is a strong feeling within the English legal system that a United States plea
bargaining system would not be appropriate for the United Kingdom.
220
Malvina Heberstain, “Towards neutral principles in the Administration of Criminal Justice,” 73
Journal of Crime, Law and Criminology, 1, (1982), p.46
221
Pizzi,,“Accepting Guilty Plea From Innocent Defendant”146 Journal of Crime, Law and
Criminology, (1996), p.997
53
7.1 The Development From TURNER’S CASE

The United Kingdom’s plea bargaining rules and practises were set out in the rules of
the Turner’s Case.222 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.” 223
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 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 court. In the case of R v Goodyear ,224 the Court of Appeal set out additional
guidelines for the issuing of an indication of the likely sentence in a particular given case. In
the Goodyear case Court held that,225
“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 deferent pleas.”
The United Kingdom 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 formulates his decision to plead guilty or not on the likelihood of the sentence that
they are likely to receive as punishment. Plea bargaining does occur in the United Kingdom
but is viewed with suspicion and is not popular. In addition to the rules of the Goodyears
case, 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 plead guilty at the first available opportunity. Charge bargains, where the

222
R v Turner, (1970) 54 CR App R 352
223
Rule 1 and 2 of the Turner’s Case.
224
(2005) EWCA Crim 888
225
(2005) EWCA Crim 888, ( 2006) 1 Cr App R (S) 6 (67)
54
prosecution drop a charge, are additionally used by the prosecution to ensure a guilty plea.226
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 crime. 227
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. 228 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 verdicts and ultimately sentences.
Here the point 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 whether the plea offer is a rational choice. 229
Critics such as Langbein, Rauxloh and Bibas allege that the argument that the

226
D.Aldge. “ Negotiated Plea Agreements in cases of Serious and Complex Fraud in England and Wales: ANew
Conceptualisation of Plea Bargaining ? In: Web. J.C.L.I. 19 (2013).http://webjcli.org/article/203 (accessed on 23
march 2016)
227
Ibid.
228
Ibid.
229 Supra note162.

55
defendant 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 includes the ability to
base 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. 230The 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 guilty the lawyer will earn a 75% fee increase. 231 In the
United Kingdom 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.
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. 232In 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

230 Ibid.
231 Owen Bowcott, Lawyers to earn higher legal aid fees for early guilty pleas,
http;//www.theguardian.com/ law/2013/Nov . ( accessed on 15 December 2015 )
232 Ibid.

56
on indigent defendants.

The United Kingdom as compared to the United States of America has less ability for
formal plea bargaining regulation 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. 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.

7.2 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 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 Courts (Sentencing) Act 2000. The discount given cannot exceed one fifth of the
prescribed minimum sentence.233 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.” 234
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. Court of Appeal, in the case of R v Simon Roland Langridge235 again reiterated its
disapproval of “closed” justice whereby the guilty plea was accepted by the prosecution after
the judge, gave his views about the strength of the case. 236

233 Crown Prosecution Service Sentencing Guidelines ,http://www.cps.gov.uk/legal(accessed on 15

Dec2015)
234 Ibid. Criminal Justice Act 2003 .Section 144(2)
235 (2010) EWCA Crim. 2055
236 Supra note 169.

57
7.3 Guilty plea rates in England and Wales

Various historical figures exist for guilty plea rates in England and Wales, but the
proportion of defendants pleading guilty between the 1950s and 1970s in the superior criminal
court appears to have been 57-75%.237 Gibson found a plea rate of 75.5% in 1956; the
Association of Chief Police Officers 64% in 1965 (a countrywide sample); Rose a rate of 57%
in 1967; Zander a rate of 63% in 1972 (a combined sample of defendant in the Inner London
Crown Court and Old Bailey); and approximately 60% according to the Lord Chancellor’s
Department in 1972 .238The guilty plea in English courts is entirely determinative of the
process of guilt finding. Once a defendant has pleaded to the charge addressed to him or her,
the court turns to sentencing and does not investigate the factual basis for the offence unless it
is pertinent to sentence itself. 239

The plea of guilty has become central to the English criminal justice process. The
classic image of a jury meticulously weighing the evidence after the testing of witnesses under
cross examination does not reflect the reality of the English courts.240 Of the 96,027
defendants dealt with in the Crown Court in 2008, 65,571 (68%) entered a guilty plea. 241 In
the magistrates’ courts, where 95% of all criminal cases are heard, over 92% of defendants
pleaded guilty. Therefore only 2% of defendants had their case heard in a jury trial and only
10% of defendants contested their case in some sort of trial hearing. 242

237 The Crown Court was established by the Courts Act 1971, and replaced the Courts of Assie and
Quarter Sessions.
238 E.Gibson, “Time Spent on Awaiting Trial” (1966) 166, NLJ, p.928
239 Ibid.
240
P.Darbyshire, “The Mischief of Plea Bargaining and Sentencing Rewards” (2000) Crim .L. R., p.895
241
Ministry of Justice, “Judicial and Court Statistics 2008” Table 6. http://www.cps.gov.uk/legal (accessed
on 15 Dec 2015)
242
Ibid.
58
 8 Development of Plea Bargaining in Civil Law Countries

In various countries, the main driving force for the adoption of a plea bargaining
mechanism is the 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 analysis 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, Italy and
France. 243 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 influences 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.244

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”.245
Plea bargaining can only be fully understood in the context of the actual dispute
between parties. 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 typically a product of the adversarial system. However, the very idea of denying
an individual right to a fair trial, by a pre-admission of guilt goes against the adversarial
nature of a trial.

All of the analysed countries provide statutory provisions which allow the court to

243
M.Langer. “From Legal Transplants to Legal Translations: The Globalisation of Plea Bargaining and
theAmericanisation Thesis in Criminal Procedure”. In: 45, Harvard International Law Journal, (2004), p. 64
244
Ibid.
245
Ibid.
59
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. 246Reinforcing that all systems are very distinct. Two countries
analysed Germany and Italy 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 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 becomes a difficult one in case of a
Country with a well-established legal system.
The terms adversarial and inquisitorial describe two different structures used to
understand the ways in which certain concepts are defined in distinct criminal
proceduralsystems. For example, the concept of truth has a different meaning in both of the
systems. 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.247

Langer further argues that these distinctions between the ’guilty plea’ and the
confession 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 conditioning’, the

246 Ibid.
247 Supra note 200.
60
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. 248 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 dicer as the guilty
plea system gives more room for the innocent to accept the plea bargain if they feel that the
trial outcome will be unfavorable. However, the overwhelming pressure of ever growing
caseloads, as mentioned above, has meant that some form of plea bargaining has been adopted
throughout Europe.

8.1 German

The case of plea bargaining in Germany is distinct from that of the United States of
America. In that the introduction of Germany’s plea bargaining into its legal system was done
through the backdoor in the 1980s.249 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.

In Germany there have been calls to move back to this practice of pre-trial
investigation which involves gathering a pre- trial dossier.250 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

248 Ibid.
249 Ibid.
250 R.E.Rauxloh. “ Formalisation of Plea Bargaining in Germany-Will the New Legislation Be Able to

Square the Circle?,” 34 , Fordham International Law Journal, (2010), pp.296-330

61
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. 251

The German system has particular problems with the practice of Absprachen because
the German criminal system is centred on 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 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. 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 GesetzzurRegelung der
VerstandigungimStrafverfahren.252 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’. 253
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. The German system is
an interesting to observe because the criminal procedure does not recognise guilty pleas.
There are several provisions within the German Criminal Code (GCC) which allow for the
251
Ibid.
252
Ibid.
253
Ibid.
62
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. 254
A common factor between the United Kingdom and the German system is that they
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 reduction 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. 255
As mentioned above the German system focuses on the judge determining the
substantive truth, however the practice of informal negotiations bypasses this. This onus upon
the judge means that they must then examine all of the necessary evidence 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 evidence and not just that which the two opposing
parties are presenting. The plea bargain is completely at odds with this process because by its
very nature it shortens the process and requires less evidence to be examined. There are two
central objections 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.256
Another issue is the requirement of the principle of individual guilt. 257 The principle

254
Ibid.
255
Supra note 207.
256
Ibid.
257
German Penal Code, Section 46
63
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. “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.258

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 2009 259 was introduced as a means to
codify and also to regulate the practice. 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.” Section 257
C 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.” 260 Importantly, Section 160 (b) 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 257 C (4) tries to protect the rights of
the defendant to a fair trial by stating that 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

258
V.J.Carduck. “ The Future of Plea Bargaining in Germany “ Warwick School of Law Research Paper No.
2013-17 ( Special Plea Bargaining Edition) (2013), p.14
259
Supra note 207.
260
Supra note 200.
64
only if the defendant does not waive their right to appeal that there will be any formal control
of the informal negotiations.261

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 Section 35 (a). 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.” 262
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 than defendants who had not accepted or participated in the settlement.

Unfortunately the Act failed to help the much needed clarification of the law. As such
the Federal Constitutional Court ( FCC ) was requested to review the law enacted in 2009 and
its Constitutionality. The FCC decision found the new law not unconstitutional. The FCC
decision permitted the legislature to regulate plea bargaining. In addition to finding the new
law not unconstitutional the FCC also stated that the Court also called upon public
prosecutors, as guardians of the law, to monitor negotiation practices. 263 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 of the prosecutor to this role
does little to help the constitutionality of the legal arrangement. 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

261
Ibid.
262
Supra note 215., p.16
263
Ibid.
65
the lack of practicability. 264

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. 265 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 and delete it from the Code of Criminal Procedure (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 CCP. 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. 266

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 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

264
Ibid.
265
Ibid.
266
Supra note 207.
66
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.267
There have been several problems identified within the German system. There are two
main problems which have been identified that of the conflict between practitioners 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 German 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 process? This question has been left unanswered by both the legislator
and the courts leaving it up to the practitioners to forge the path ahead.
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. 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.268

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

267
Ibid.
268
Supra note 200.
67
legislation fails to cover those informal negotiations which take place before the main trial. 269
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.270
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
agreements within the German system:
“Through giving up the punitive, repressive paradigm in favour of an economic
paradigm and abandonment of hierarchical, authoritarian form of interaction in favour of
process, criminal procedures become increasingly similar to administrative law procedures,
solving conflicts of interest by negotiation”
The German system can be split into two parts, the search for consent or the search for
truth.271 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”. 272 The Court
would then be relegated to the role of a notary public with very limited supervisory functions.
This shift in approach would no longer require a confession. The criticisms 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. 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.273

269
Ibid.
270
Ibid.
271
T.Weigened, “Is the Criminal Process about the Truth? German Perspective”, 26 Harvard Law and
Public Policy (2003) , p.153
272
Ibid.
273
Ibid.
68
8.2 Italy

Italy introduced a practice similar to plea bargaining in the 1980s in its new Criminal
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 legality 274 and there were no
alternatives available to alleviate the caseload of the courts. As a result the Courts responded by
issuing amnesties. This practice, however, did not do much to help the situation as such Italy,
unlike Germany, 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
redundant the previous criminal procedural code which was adopted in Mussolini’s era. 275
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.
The introduction of these two alternatives to the full trial developed the practice of
negotiated justice. Italy is distinct from its European neighbors in that it has set about trying
to harmonies the constitutional principles of criminal law and procedure with the practice of
plea bargaining. In order to achieve this part of the Italian constitution were amended so as to
ensure negotiated justice would not be regarded as unconstitutional. The concept of negotiated
justice was recognized 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 therefore invited States, wherever constitutional and
legal traditions allowed it, to introduce “guilty pleas”.

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

274
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 that the judge must only be
guided by law.
275
Supra note 179.
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go to trial. 276 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 United States 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. 277 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. 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.
The extent of the judicial supervision is dependent 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
dependent 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. 278

276
F.Lovene. “Plea Bargaining and Abbreviated Trial in Italy,”Warvick School of Law Research Paper
No.2013/11, 11 (2013), p.14
277
Ibid.
278
Ibid.
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 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.279
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.280 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) 281

279
Ibid., p.10
280
Ibid., pp.11-12
281
Ibid., p.13
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 9 Conclusion

The idea of solving criminal matters by adopting alternative method is not new to
India. In fact it was practiced as a passion of justice in India. Indian epics, Shastras, Koutilyas
Arthashastras literature and even in Quranic verses the practice of plea bargaining was
mentioned in the form of self-purification by reducing or removing the effects of sin of
committing offence, by serving the society and by expiation measures.
In modern India, criminal jurisprudence did not recognize the concept of plea
bargaining as such. However section 206(1) and section 206(3) of the code of criminal
procedure 1973 and section 208 of the Motor Vehicles Act 1988 do enable the accused to
plead guilty for petty offences and to pay fines where upon case is closed, but in such case
there is no plea bargaining between prosecution and the accused. The Indian Supreme Court,
therefore had strong reservations about plea bargaining since according to procedure by which
a person is convicted on plea bargaining made as a result of inducement was considered to be
violate Article 21 of the Constitution. As at that time (prior to 2005) neither the Code of
Criminal Procedure nor any other law authorized plea bargaining and if there had been a legal
provision authorizing the procedure the objection would not have been made. But it was
Gujarat High Court that recognized the utility of this method. The Court reasoned the change
by stating that the very object of the law is to provide speedy justice by resolution of disputes,
including trial of criminal cases and considering the present realistic profile of pendency and
delay in disposal of cases fundamental reforms are inevitable. There should not be anything
static. It is really a measure and plea bargaining will add a new dimension in the realm of
judicial reforms.

To reduce the delay in disposal of crores of criminal cases in the county the 154 th
Report of the Law Commission first recommended the introduction of plea bargaining as an
alternative method to deal with huge arrears of criminal cases. This recommendation finally
found support in the Malimath Committee Report on criminal justice reforms in the year
2003. The system of plea bargaining was introduced as a result of criminal law reforms
introduced in the Criminal Law (Amendment) Act 2005 which came in to effect from July 5
2006, in the form of Chapter XXI-A to the criminal procedure having Section 265-A to 265-
L, so as to provide for raising the plea of plea bargaining to certain types of criminal cases.

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 The concept should be given a chance of survival. As the overloading of courts with
piling up of criminal cases is threatening the foundations of the system, the plea bargaining
may be accepted as one of the required measures for speeding up case load disposition. The
mechanism is working since last ten years in India. In next chapters of this research work an
attempt has been made to study the working of the process of plea bargaining in the
subordinate courts, its impact on crime rate, conviction rate and ultimately how the rule of law
is affected.
This disputed concept of Plea Bargaining is more a mechanism of convenience and
mutual benefit than an issue of morality, legality or constitutionality. There is an inevitable
need for a radical change in criminal justice mechanism. It may be a welcome change but only
when there is possibility of swift and inexpensive resolution of cases. If the sole purpose of
criminal justice system is to rehabilitate criminals into society, by making them undergo
specified sentences in prison, then plea bargaining looses most of its charm.
Whether it is known or not, plea bargaining is being practiced by the various
stakeholders of ‗crime‘ and criminal justice system. Putting this process under judicial
scrutiny opens up the possibility of fair dealings in these bargaining. In the present
atmosphere plea bargaining is inevitable component of adversarial system.
However, to make use of the available process and to secure the gains from these
reforms, the plea bargaining process could be successfully used, for which the police,
judiciary and the bar need to understand it in first place, and try to adopt. Defending
Advocates should encourage the litigant to opt for the plea bargaining rather than to treat the
plea bargaining as threat to their profession. It is obvious that the capacity building of police
and judges should be the high priority and a pre-requisite for experimenting the plea
bargaining. It can be given a chance of survival. From the experience in US it can be said that
the plea bargaining remains a disputed concept and a doubtful practice. As the overloading of
courts with piling up of criminal cases is threatening the foundations of the system, the plea
bargaining may be accepted as one of the required measures for speeding up caseload
disposition. After giving a rigorous trial to this mechanism, there should be a thorough study
of its working, its impact on crime rate, conviction rate, and ultimately how the rule of law is
affected.
Plea bargaining not only occupies a central position in many adversarial jurisdictions
but also permeates diverse justice structures including the classical inquisitorial systems.

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Inspired by adversarial jurisdictions, Ethiopia has adopted the unrestricted or unlimited
variant of plea bargaining, at least at policy level in addition to which a draft law is underway.
Although this variant of plea bargaining helps reduce case backlog to the extent that
the problem correlates with full-scale trials, it is bound to pose its own tribulations which are
either inherent to the institution, or typical to the version adopted by Ethiopia, or to the
Ethiopian context. This author takes up one dimension of such issues: its relationship with
fundamental principles of criminal law and procedure and argues that plea bargaining in
general and the proposed Ethiopian variant, in particular is not consistent with such principles
which are designed to ensure the integrity of the criminal process. The principles and rights
that would be adversely affected include the presumption of innocence, the principle of
equality, the principle of equality of arms, the privilege against self-incrimination and the
right to silence. Nor is it compatible with one of the main purposes of any criminal procedure
–uncovering the truth with the ultimate objective of making guilty defendants account for
their wrong. The magnitude of the problem is not similar in all models of plea bargaining.
The problem exists in a mitigated form where plea bargaining is applied in the
restricted or limited model which is characterized by statutorily fixed discounts, the ban of
charge and fact bargains, and rigorous judicial scrutiny. That is why many inquisitorial/mixed
jurisdictions such as Italy, Germany and Russia prefer this model over the unrestrained model,
albeit with variations among them.
However, this should not suggest that the limited model is capable of remedying the
inherent flaws of plea bargaining, such as its inconsistency with fundamental principles and
rights. Yet, sentencing differentials can be regulated by law under the limited model of plea
bargaining thereby narrowing the gap between trial sentences and plea sentences. This model
could also considerably mitigate the flaws of plea bargaining with regard to charge and fact
bargains (which lack consistency and utterly defy the truth-finding endeavour). Moreover,
rigorous review of the plea agreement applies under the limited model, and this enhances
prosecutorial accountability. In this sense, should it be inevitable that Ethiopia uphold
plea bargaining, this limited model could be a lesser evil.

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