The Committee on Legal Affairs and Human Rights stresses the
importance of fair trials in criminal proceedings. It notes that
in many member States, regular criminal trials have gradually been
replaced by different forms of trial waiver systems (plea bargaining).
Trial waiver systems have clear potential advantages. They
save resources that would be required for systematically holding
full trials in open court and help the fight against organised crime
by allowing prosecutors to offer “deals” to potential crown witnesses.
But trial waiver systems also have serious drawbacks. They
are open to abuse by both the prosecution and the defence. In particular,
the secrecy of “deal-making” undermines the public’s trust in the
judiciary and the fair and non-discriminatory application of the
The committee therefore considers that appropriate safeguards
are needed in order to ensure that member States enjoy the potential
benefits that trial waiver systems may offer whilst minimising the
threat to human rights. These include making the involvement of
a lawyer obligatory, imposing a minimum level of investigation into
the crime underlying the plea agreement and the disclosure of the
results of the investigation, requiring judicial scrutiny of key
elements of the plea agreement (including the credibility and voluntary
nature of the underlying confession and the appropriateness of the
sanction resulting from the plea agreement), limiting the extent
of the “trial penalty”, prohibiting the waiver of appeal rights,
and monitoring indicators of racial or wealth bias or discrimination.