Fair Trials recognises the benefits of trial waiver systems. However, we also recognise that, if they aren’t accompanied by safeguards, they can cause major problems to justice and the rule of law. We believe that trial waiver systems should be rooted in a rights-based approach. This can include:

• mandatory access to a lawyer,
• sufficient time and information to understand the case against you,
• judicial scrutiny of evidence and procedure,
• involvement of a judge in negotiations, enhanced recording/data collection and
• limitations on benefits so that the incentives to plead don’t become so extreme that they produce perverse outcomes, with innocent people pleading guilty.

The trial is the archetype of criminal justice: just think of the dominance of court-room drama in film, TV and literature. But, in reality, the trial is starting to disappear. People are increasingly being incentivised to simply plead guilty and to waive their right to a trial.

The use of trial waiver systems like plea bargaining, abbreviated trials and cooperating witness procedures have increased about 300% since 1990. It’s also happening in more places than ever before. Of the 90 countries studied by Fair Trials and Freshfields, 66 now have these kinds of formal “trial waiver” systems in place. In 1990, the number was just 19.

We are not opposed to this in principle but these out-of-court mechanisms can impact fair trial rights and the criminal justice system more widely in serious ways, including:

• Innocent people can be persuaded to plead guilty: an estimated 20,000 innocent people are in US prisons alone, after taking a deal.
• Easier convictions can encourage over-criminalisation and drive harsher sentences.
• Inequality of arms and a lack of transparency where “deals” are done by prosecutors behind closed doors.
• Public trust in justice can be undermined.