At the heart of the Mandelson scandal – currently ricocheting dangerously through the highest levels of British politics – is the disgraced, former Lord’s assertion “it just could never happen in Britain.” With one sentence he – unwittingly – declares criminal justice failure a norm.
A man committing offences now being qualified even as potential crimes against humanity[1] – Jeffrey Epstein – appears to have been so able to control the narrative surrounding his conviction, he was able to dupe a sitting European Commissioner into believing it constituted a miscarriage of justice. In fact, Epstein’s 2008 conviction – for solicitation of prostitution involving a minor – was scandalously mild both in charge and punishment. This allowed him to continue preying upon young women and children for more than a decade afterwards, to (mostly) retain his freedom, social status, wealth and influence. The multi-country, political scandal that has understandably ensued since these facts came to light – thus far toppling a US Labour Secretary and a British Ambassador – demonstrates that justice was not served. Victims – past and future – were failed, fair labelling and just punishment not achieved, nor the intended stigmatisation of a serious and dangerous offender. All core purposes of criminal justice – British and US American – appear to have been failed. So the headlines tell us.
Can we then, with a significant sense of irony, take comfort from Mandelson’s words? Is it true that this “just could never happen in Britain?” The Epstein case does, after all, seem to represent all that many criminal justice scholars have long warned as problematic about US American criminal justice systems.
Epstein’s conviction resulted from a negotiated case-settlement; a federal non-prosecution agreement facilitated by a guilty plea to a state indictment. Charge, plea, sentence and the particulars of punishment (18 months in an open prison meaning he was effectively able to continue living many aspects of his normal life) were all subject to negotiation, and thus heavily influenced by Epstein’s legal representative, to tip in his favour. His victims and his potential to offend further, appear to have been forgotten. His case is an extreme example of issues criminal justice scholarship has long associated with plea-bargaining and other, negotiated case-settlements. Undue influence by powerful defendants, decisions taken behind closed doors meaning victim input and transparency are lacking, accountability lost means that, at best, a bit of punishment is achieved via minimal effort from the (overloaded) criminal justice system. Centrally the danger of injustice is viewed as immense. More generally, the coercive pressure on defendants can lead to unfair convictions and over-long sentences but more powerful defendants have far more lee-way to influence the terms of the criminal justice response they receive.[2]
The US has long been described as featuring criminal justice systems (federal and states) dependent upon negotiating case-endings with defendants.[3] Ninety Seven percent of Federal cases, ninety four percent of State cases are settled in this way. Epstein’s is an extreme case perhaps, but not unexpected to those familiar with US criminal justice. A 2020 review of his case settlement found it to be the result not of incompetence or corruption but a lack of appropriate oversight by the responsible U.S. Attorney, Alexander Acosta.[4] Tellingly, no breach of professional standards was established. Acosta nevertheless found himself forced to resign his post as US Secretary of Labour shortly after that finding. There was no criminal justice breach of standards despite the – more recent – political unpalatability of this deal.
A tale of US criminal justice failure then? The British reaction to the content of the Epstein files has been significant. An investigation of the sort conducted by the FBI leading British criminal justice organs to a negotiated case-ending, resulting in a relatively short-sentence, in an open prison is, surely, unimaginable? Just as Mandelson said, even if differently to how he meant it.
Except, of course, that ‘justice’ is also not infrequently negotiated here. The last 20 years have witnessed the emergence of scholarship demonstrating the reassuring notion that criminal justice’s dependency on bargains is US exceptionalism to be fallacious. Although laws across Europe continued to insist that negotiated case-endings (which is what plea bargains, non-prosecution agreements, etc. are) were not compatible with our core ideas of justice, practice reflected in statistics revealed this to be a legal fiction.[5] Systems of all kinds were turning to negotiated case resolution as a coping mechanism to overload.[6] England and Wales relies heavily on guilty pleas.[7]
And there is little to give us confidence that justice would have ensued here. Epstein and associates were not infrequently In Britain, victimisation is alleged here and a criminal justice response is, as yet, lacking. Mandelson’s arrest has nothing to do with Epstein’s heinous offending. The knee-jerk reaction of most UK criminal justice observers is perhaps that an organised, criminal operation, trafficking women and girls, facilitating their systematic sexual abuse would be the subject for negotiated justice seems unlikely. A look at the reality of our criminal justice system, however, is sobering. The rate of conviction for sexual offences[8] and the systematic failure of the systems in place to properly identify trafficking human beings victims[9] does not provide an evidence base of confidence for any such statement.
So what does the British evidence say? Could a man who so clearly should have been convicted and imprisoned for a lengthy period achieve a plea deal in the UK that allowed him to retain his wealth and social standing? Could he avoid the public stigma a criminal conviction should provide; enabling him to control the narrative around his conviction to the extent that only those conducting effective due diligence actually come to understand the true nature of his heinous, criminal conduct? Our criminal justice system too depends on characterising cases differently to how the public might often expect.[10] Guilty pleas leading to reduced sentences keep the system running. Practitioners are left with high-caseloads, high demand and limited resources. Compromise is the norm for criminal justice, also in Britain.[11] If a defendant is recognised as a serious sexual predator and a prosecution viewed as viable, court time and a “classic” trial remain likely. Cases such as John Worboys and David Carrick, Jimmy Savile and indeed the Rochdale scandal, however, demonstrate to us all too regularly that our criminal justice system is not primed to truly recognise even severe, serial offending. What the system will see, unfortunately, remains questionable, especially when vulnerable women and girls are victimised.
When dealing with more powerful defendants, in turn, the British criminal justice system is often structured to compromise. In such scenarios it is often embodied by entities other than the police and Crown Prosecution Service such as the Serious Fraud Office and the Health and Safety Executive. These default to negotiated case settlements (such as deferred prosecution agreements) or a non-prosecution focused ‘compliance’ model.[12] Their remit is not sexual offending. But before such bodies are dismissed as less crucial to justice, it should be emphasised that it was, for example, the Health and Safety Executive that was entrusted with enforcement powers to address the causes of the Grenfell tragedy.[13]
Important sectors of the UK criminal justice system not only allow powerful defendants to control the narrative surrounding their admissions of guilt. It is not unreasonable to conclude that they dictate them.[14]
If correctly identified, offences such as those committed by Epstein should be dealt with by the mainstream criminal justice system and a negotiated case-ending seems less likely. That if is a very considerable one, however. Too many cases have shown us that – also in Britain – systematic sexual abuse of the vulnerable is recognised only much too late, if at all. Making a confident statement that even Epstein would have been investigated and charged is difficult, not least because his case also featured a number of opportunities for British criminal justice to be engaged; never mind his ability to dupe a sitting British, European Commissioner into declaring his conviction as inconceivable in Britain.
British criminal justice organs are also subject to relentless reform. Greater efficiency is sought in mechanisms that see justice taken behind closed doors, key decisions made by an individual – often operating under extreme case-load pressure – traditional mechanisms of transparency and accountability are jettisoned in the hope of administering justice more swiftly.
A lack of transparency and accountability are precisely the features identified as having facilitated Epstein’s lenient treatment in 2008. They are core problems comparative scholarship on prosecutors associates with the trend towards case-settlements, negotiated away from public scrutiny. The decision they facilitated ensured Epstein could continue to severely harm women and girls for a further 10 years. A failure of oversight and a lack of professional standards matching public expectations of criminal justice then led to a political scandal. A sense of criminal justice failure. Not, however, honesty about what criminal justice systems, in fact, routinely do. Nor, indeed, any attempts to reform the causal factors.
The headlines scream dismay at the injustice of this case. And rightly so. They could, however, usefully begin to unpack how it can have come to this and to interrogate Mandelson’s statement that ‘this just could not happen in Britain.’ This is, in fact, the kind of outcome criminal justice systems across the globe are becoming primed to produce. A bit of ‘justice’ (some punishment at least), negotiated – at worst – with powerful defendants behind closed doors, with no victim say nor public accountability… until the headline hits in exceptional cases.
There is a criminal justice headline missing, and it is this: even diligent criminal justice practitioners are not being supported by their working structures to actually go after what each of us would want for a loved one, should they ever need the criminal justice system. As we reflect again upon criminal justice reform necessitated mainly by the justice system we think we can afford, the Epstein case should be clear in our line of view. His is an extreme case, but a very clear illustration of what a justice system, factually incentivised above all by efficiency, produces.
Case resolutions are compromises; a justice of sorts produced utilising as few resources as possible, knowingly bringing charges not reflecting of the offending as a whole, resulting in a punishment significantly less than what the convicted, guilty party deserves. When based on negotiated compromises – which such systems invariably are – powerful, wealthy defendants will have all the more influence on those final two factors. The ‘justice’ served will be very compromised indeed. If non-public, corner-cutting justice is all we are willing to pay for, Epstein is what we get, even in Britain.
[1] UN Human Rights, Office of the High Commissioner, Flawed ‘Epstein Files’ disclosures undermine accountability for grave crimes against women and girls: UN experts, Press Release, 16th February 2026.
[2] For an overview see Luna, E and Wade, M. (2010) Prosecutors as Judges, Washington and Lee Law Review, Vol. 67, No. 4, p. 1414-1423.
[3] See Thaman, S, (2024) Plea bargaining in the United States, p. 36 in Langer, M, McConville, M and Marsh, L (2024) Research Handbook on Plea Bargaining and Criminal Justice, EE.
[4] Department of Justice, Office of Professional Responsibility, Executive Summary of Report, Investigation into the U.S. Attorney’s Office for the Southern District of Florida’s Resolution of Its 2006–2008 Federal Criminal Investigation of Jeffrey Epstein and Its Interactions with Victims during the Investigation, November 2020, p. ix-x. Available at: https://www.justice.gov/opr/page/file/1336471/dl
[5] See Jehle, J.-M. (2006) The Function of Public Prosecution within the Criminal Justice System Aim, Approach and Outcome of a European Comparative Study, p. 8-10 and Wade, M. (2006) The Power to Decide – Prosecutorial Control, Diversion and Punishment in European Criminal Justice Systems Today, p. 83-85 and 111-115 both in Jehle, J.-M. and Wade, M. (2006) Coping with Overloaded Criminal Justice Systems, Springer.
[6] For an overview of plea-bargaining law and practices in 30 Council of Europe Member States see paras. 62 et seq of the Natsvlishvili and Togonidze v Georgia judgement of the European Court of Human Rights (Appl. No. 9043/05) of 29th April 2014. See also Wade, op cit and Wade, M., Aebi, M. Aubusson de Cavarley, B., Balcells, M., Gilleron, G, Hakeri, H. Killias, M, Lewis, C., Roth, E., Smit, P., Sobota, P., Turkovic, K. and Zila, J (2008) When the Line is Crossed in European Journal on Criminal Policy and Research, Vol. 14, 2-3, p. 101-122.
[7] See Attorney General (2012) The acceptance of pleas and the prosecutor’s role in the sentencing exercise, available at: https://www.gov.uk/guidance/the-acceptance-of-pleas-and-the-prosecutors-role-in-the-sentencing-exercise#:~:text=The%20defendant%27s%20basis%20of%20plea,13%2C%20CA; Sentencing Council (2017) Reduction in sentence for a guilty plea, available at: https://sentencingcouncil.org.uk/guidelines/reduction-in-sentence-for-a-guilty-plea-first-hearing-on-or-after-1-june-2017/ Lewis, C. (2012) The Evolving Role of the English Crown Prosecution Service in Luna, E and Wade, M. (eds) The Prosecutor in Transnational Perspective, Oxford OUP, 214-234.
[8] The Victim’s Commissioner (Baird, V.) (2022) 22 January 2022 The distressing truth is that if you are raped in Britain today, your chances of seeing justice are slim – Victims Commissioner
[9] See e.g. Home Affairs Committee, Human Trafficking, First Report of Session 2023-24, paras 202-208
[10] Often to keep cases within the jurisdiction of Magistrates Courts, e.g.
[11] See e.g. Marsh, L. (2024) A portrait of guilt from England and Wales: defending against state-induced pleas, p. 58-75 in Langer, M., McConville, M. and Marsh, L. (2024) Research Handbook on Plea Bargaining and Criminal Justice, Edward Elgar Publishing.
[12] For an overview see Sanders, A., Young, R. and Burton, M. (2010) Criminal Justice, 4th ed., p. 410 et seq.
[13] Health and Safety Executive, Annual Report 2021-22, p. 3.
[14] King and Lord – “Negotiated Justice and Corporate Crime: The Legitimacy of Civil Recovery Orders and Deferred Prosecution Agreements” (Colin King and Nicholas Lord) (Palgrave, 2018); Susan Hawley, Colin King, and Nicholas Lord (2020) Chapter 13: Justice for whom? The need for a principled approach to Deferred Prosecution Agreements in England and Wales in Tina Søreide and Abiola Makinwa (eds.) Negotiated Settlements in Bribery Cases, Edward Elgar; Nicholas Lord, Prosecution Deferred, Prosecution Exempt: On the Interests of (In)Justice in the Non-Trial Resolution of Transnational Corporate Bribery, The British Journal of Criminology, Volume 63, Issue 4, July 2023, Pages 848–866, https://doi.org/10.1093/bjc/azac059