A Comparative Analysis of Plea Bargaining and the Subsequent Tensions with an Effective and Fair Legal Defence

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

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