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Introduction to Criminal Procedure

Negotiation process of offences under law is referred to as criminal procedure. This method contains rules and regulations which can be enforced by the government on people who are conducting any crime (Coffey and Gersten, 2011). This process starts with formal criminal charge and further leads to conviction of the defending party. The plea bargaining, fact bargaining and charge bargaining are methods which reduce the punishment of the parties involved in criminal procedure. Prosecutors and defendants are the two parties involved in criminal procedure. The plea bargaining is an agreement between both the parties in which prosecutor reduces the punishment of the criminal offences committed by the defendant (Plea Bargaining, 2014). Moreover, in case of fact bargaining, the essential facts regarding the case are not disclosed by the legal representative. Thus it reduces the penalty of criminal to minimum. However, in case of charge bargaining, the criminal requests the prosecutor to dismiss the larger amount caused at the time of trial  (Boduszek and et.al., 2012).

The present report includes different bargaining types and extent to which each is permissible in England and Wales. These include plea, fact and charge bargaining. Moreover, the study also includes impact of these key principles on the criminal justice system.

2. Difference between plea-bargaining, fact-bargaining and charge-bargaining and extent to which each is permissible in England and Wales

The following are the differences between plea bargaining, fact bargaining and charge bargaining and the degree to which they are acceptable in England and Wales.
Plea bargaining: It is an agreement between the parties such as prosecutor and defendant. The prosecutor is the chief legal representative. He is responsible to present the case in criminal trial against the person who has committed crime by breaking the law (Roatsey, 2012). Defendant is one who is charged of conducting any crime and thus is punishable under the criminal law. These criminal defendants are put into the custody of police and can get post bail. But in serious cases such as murder, this bail is not acceptable (Spears and et.al., 2011). In plea bargaining, the defendant agrees to pay certain amount against criminal offence conducted to prosecutor. Through this, the defendant can avoid the risk regarding serious charge under criminal law. Major advantage of plea bargain is that it results in neglecting the lengthy procedure of criminal trial (Habibullah and Baharom, 2009). For instance, in case if defendant has committed any serious crime then the person can be imprisoned in state prison. But with the help of plea bargaining an opportunity is provided to defendant to pay misdemeanors theft charges. This may include monetary charges and bargaining to reduce severe punishments caused as the conviction under the criminal procedure  (Balsamo, 2006). Thus it will not include the jail time. Plea bargaining is widely used in criminal justice system but it is not praised. It softens the impact of severe punishment on defendant. This is so because under this the person who has committed offence can bargain for lesser punishment. Plea bargaining is also termed as pre trial settlement, plea negotiations, mutually satisfactory dispositions, resolution discussion etc (Boduszek and et.al., 2012).

Fact bargaining: This is a type of plea bargaining. Under this, negotiation is done at minimum due to admission of facts which are provable. Fact bargaining eliminates the need of prosecutor in order to prove criminal offence before the state court (Bourke and et.al., 2013). In this case, the prosecutor specifies facts which thereby impact punishment of defendant. Fact bargaining is an agreement between prosecutor and defendant. This agreement is done so that prosecutor may hide certain facts that can be proved in order to reduce the punishment caused to criminal offence (Nikolov, 2011). Here, bargaining is done by person committing crime to prosecutor. The fact bargaining involves exchange of certain concessions in order to stipulate certain provable facts of the defendant. The prosecutor needs not specify the facts as he has agreed to conceal the facts. The sentencing guidelines define increase and decrease in range of sentencing if provable facts are specified (Zhang and Liu, 2004). This is very different from the plea bargaining as under this, agreement is not made to hide certain facts which can be proved. In plea bargaining, the agreement is made to reduce amount of punishment provided to defendant for committing criminal offence.

Charge bargaining: It is a form of plea bargaining. Under this type, the defendant pleads guilty for the charges that can be incurred by him at criminal trial. As a return for plea of guilty, the prosecutor will release more charges  (Masters, 2008). The original charge under this is bargaining by the criminal. The maximum charge that can be caused at time of trial can be negotiated. For example, for dismissing the charges attached with murdering, a prosecutor can accept plead guilty for Manslaughter (Levi, 2010). As compared to other two types, that is plea and fact, charge bargaining has distinguishing features. In case of charge bargaining, the amount of trial procedure can be reduced by the prosecutor for defendant. However, in plea bargaining criminal negotiates for the punishments (Loewy, 2009). It is pre trial negotiation. The case of fact bargaining is very different from the other two in which agreement between legal representative and the defendant is done to hide facts which can be proved at court. These provable facts can impact punishment of criminal to a greater extent.

In countries such as England and Wales, plea bargaining is acceptable to certain extent. In these countries, prosecutor is just responsible to drop a remainder that under certain conditions the defendant can plead guilty to some charges. As a result of this, the penalty is not bargained and decisions are made by court independently. This depicts that in England and Wales, no bargaining occurs in relation to criminal offences committed by the person. The role of prosecutor is minimized to draft reminder in case the charges are to be negotiated (Zegas, 2012). Plea bargaining has received great attention in recent years in these countries. The policies and case laws regarding this have been renewed recently (Cook, 2009). In fact bargaining, negotiation is done regarding facts which are provable. In England and Wales, fact bargaining can be pleaded by defendant in writing. It may or may not be acceptable by the prosecutor. In case if the prosecutor accepts plea, the judge has the right to refuse (Stefanou, 2010). In such a situation, Newton hearing is applicable. Under this, judge decides that whether or not the basis is correct. This decision is not made by the jury. In England and Wales, judge is not involved in charge bargaining. The bargaining takes place between the prosecutor and defendant (Stephens, 2011).

Analysis of the impact each has on the key principles underlying the criminal justice system

The following are the impacts of plea-bargaining, fact-bargaining and charge-bargaining on the key principles of the criminal justice system. The principles include due process, independent judiciary, openness and accessibility of court and equality before law court (Goals, Basic Principles and Sources of Criminal Law, 2014). These are impacted at greater extent when defendants access all the bargaining methods in reducing the length of sentences for the criminal offences committed by them.

Plea bargaining: The law is undermined by the plea bargaining. The principles of justice are put in the hands of the guilty. People who are committing crime are sentenced to less punishment as they have financial strain that can create pressure on judicial system (Plea Bargaining, 2014). It is beneficial on the part of defendant but the victim is one who suffers the loss. The principle under the criminal judicial system to prevent crime is impacted by plea bargaining as persons committing crimes are relieved from the brutal sentences (Crofts, 2011). Thus, degree to which crimes are made has increased. Appropriate justice is not provided to the person who has suffered from loss caused by defendant. Thus, it can be critically evaluated that principle to protect victim of crime is impacted by plea bargaining (Murray and Kamins, 2012). Majorly the support is provided to the criminal as his original charge is minimized. Moreover, the penalties in relation to criminal offences are lowered when the defendant pleads guilty before prosecutor. Plea bargaining is pretrial settlement which minimizes the time for further trials in criminal procedure (Roatsey, 2012). No matter how successful is plea bargaining, but it is applied into practice in criminal justice system  (Stefanou, 2010). The prosecutors are obliged to provide lighter sentences as compared to what is authorized by the law.

Some of the authors feel that it is unfair on the part of the criminal defendants. This is because the prosecutors can charge any amount from the defendant as they know the crime held by criminal and possess the facts that can prove that criminal has committed genuine offense against the victim (Balsamo, 2006). It is forced that legal representative has to win the case at any cost. Thus it deprives the prosecutor to charge much from the criminal. The major impact of this is that it softens the effect of punishment on the part of criminal. The use of financial strains has increased. Thus criminal offences have also risen due to plea bargaining (Habibullah and Baharom, 2009). Moreover, the principles of the criminal judicial system are impacted due to this. Some of the authors support plea bargain. They say that it is advantageous to both prosecutors as well as defendant. This system reduces the sentence time of sentences. Thus, cases are resolved at faster rate (Bourke and et.al., 2013). Also, the expenses of prosecution increase greatly when the cases are forwarded for trial. By using plea bargaining, the workers of the judicial system can but their efforts into more serious cases. Thus it enables the protection of every party including the public (Zhang and Liu, 2004). In many countries, plea bargaining has become the most important element in the criminal justice system. The criminal in order to reduce the charges will admit the criminal offences committed by them. Thus this will have potential impact on the country which may reduce the crime rates (Levi, 2010). The principle of openness and accessibility of court under criminal judicial system is affected as in case of plea bargaining it is not necessary that all the parties concerned may be treated fairly.

Fact bargaining: Under this, prosecutor agrees on not to reveal factual circumstances in front of court. This form of plea bargaining is accepted rarely. When the proof can lead to increase in more severe sentences then this type of bargaining is used by the defendant. The principle to treat all the parties is obstructed with fact bargaining  (Loewy, 2009). When the facts are not disclosed then victim suffers with the huge loss as justice has not been done by hiding of facts of the criminal. In many countries it is not acceptable as it dismiss defendant from sentences. The principle of due process is affected as this attitude states that every fact related to the case is required to be critically assessed under the criminal justice system (Zegas, 2012). The rights of the persons who are affected by criminal offences are destroyed as proper treatment is not provided to them. This may reduce the fear among the criminals as they can get an easy release from punishments using fact bargaining. It can be assessed that facts can sometimes prove the person correct so this may reduce the time of punishing that person from further criminal trials. In case of fact bargaining, there are more chances for prosecutors to charge more as they are well acquainted with the provable facts of the criminal (Coffey and Gersten, 2011). Thus, any amount demanded by them has to be compensated by the defendants so that they can negotiate the severe charges from the court by not disclosing the fact. The principle of equality treatment is forgone by hiding the facts. It impacts the proceeding of the criminal system as hearing is not suitable because of absence of essential facts that may compensate the victim.

Charge bargaining: This is the type of plea bargaining under which defendant agrees to plead guilty to a lesser charge so that greater charge can be dismissed. It is post trial settlement which aims at reducing the amount caused at the time of trial  (Murray and Kamins, 2012). Negotiation of the charges impacts the principles of the equality before law. This principle defines that every individual concerned with the crime whether it is criminal, victim or prosecutor needs to be treated equally. The bargaining of the charges do not comply this attitude. Thus it influences the criminal justice proceedings (Masters, 2008). Any offence done on public roads like street fight can be charged before the trial court. The criminal can pledge guilty to lessen the amount of charge. In addition to this, bargaining of reduction of severity of criminal charges can be charge bargaining. The criminal can be benefitted as he has to bear fewer charges for offence committed whereas in such case it disrupts the principles of criminal judicial system (Cook, 2009). Moreover, the due process rights are infringed because of these implications. It can be critically assessed that from the point of view of the victim this practice is not satisfactory. It can be evaluated that this practice increases the number of crimes as charge bargaining offers an opportunity to defendant to reduce the penalty amount  (Spears and et.al., 2011). In different countries, the charge amount may vary as per the offences. It is essential that such bargaining needs to be accomplished within the provided guidelines of criminal judicial system. It is required that charge bargaining reflects the defendant’s honesty and seriousness in fulfilling the necessary provisions and guidelines (Stephens, 2011). Also, there is a need that prosecutor is agreed upon the charges paid by the defendants. In dealing with the victim, these powers of bargaining held by the defendants can lead to disruption in the judicial outcomes.


It can be concluded from the study that criminal procedure lays burden on the prosecution to prove that defendant is innocent. The resolution is in favor of criminal. The implication of the different bargaining such as plea, fact and charge varies from country to country. It has been evaluated that in England and Wales the plea bargaining is only applicable to a certain extent. That is the prosecutor can just remind the defendant that crime can be discounted (Nikolov, 2011).


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