Fiona Leverick

Plea and confession bargaining has long been a feature of Scots criminal law. This paper describes and comments upon the procedures governing this practice in Scotland.

Prior to charge, various alternatives to prosecution exist—such as prosecutor fines—whereby the accused avoids court proceedings entirely. Recent proposals for expansion are examined, including prosecutor imposed community service orders and work orders and a controversial proposal whereby an accused is deemed to have accepted the offer of a prosecutor fine simply by virtue of taking no action within a period of 28 days. These proposals, and their accompanying policy justifications, suggest that the courts (with their accompanying safeguards of judicial scrutiny of evidence and legal representation) are no longer seen as the appropriate place to deal with minor offences.

Subsequent to charge, there are two ways in which the criminal justice system offers an inducement to the accused to try and persuade him to plead guilty. The first is sentence discounting for guilty pleas, Du Plooy v HM Advocate 2005 JC 1 having established that an early guilty plea should attract a sentence ‘discount’ of up to one third. This sits alongside a system of informal charge bargaining—whereby the prosecutor accepts a guilty plea in exchange for the reduction or deletion of a charge on the indictment. The hope of the accused is that this will result in a lesser sentence, although because there is no judicial involvement, this cannot be guaranteed. Taken together, a substantial reduction in sentence for the accused who pleads guilty can result. The justification for offering sentence discounts is openly stated by the Scottish Executive and the courts to be the resulting efficiency benefits.

The paper concludes by suggesting that these processes are evidence of increased managerialism in the Scottish criminal justice system at the possible expense of due process.

Cite as: Fiona Leverick, Plea and Confession Bargaining in Scotland, vol 10.3 ELECTRONIC JOURNAL OF COMPARATIVE LAW, (December 2006), <http://www.ejcl.org/103/art103-8.pdf>.

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