“He knows if he’s guilty or not”

The Sentencing Council is currently consulting on a new guideline that will dictate the level of reduction that a defendant will receive for entering a guilty plea. The guideline will replace the current SGC guideline on reduction in sentence for guilty pleas.

Certain aspects of the draft guidelines have been a cause of major concern for criminal practitioners. Specifically, the draft guideline proposes that defendants must enter guilty pleas at an earlier stage in the proceedings in order to benefit from the full one-third discount. Criminal defence practitioners such myself are concerned that this will put increased pressure on defendants to enter guilty pleas without knowing the full extent of the case against them.

Support for this view has come recently from the House of Commons Justice Committee with the publication of its response to the draft guideline.

The approach taken by the draft guideline, in comparison with the current guideline, is helpfully summarised by the committee in its report as follows:

• The point at which an offender can benefit from the maximum (one-third) reduction will be much more tightly defined; to qualify, they must plead guilty at ‘the first stage of proceedings’ – that is, the first time they are asked for their plea in court. In contrast, the SGC guideline requires the offender to plead guilty ‘at the first reasonable opportunity’.
• For offenders who plead guilty after that first stage, the maximum reduction they can be given will be one-fifth, rather than one-quarter as under the current guideline.
• Offenders who plead guilty later will thus serve longer sentences than those who plead guilty at an early stage.
• For summary offences, ‘the first stage of the proceedings’ means up to and including the first hearing at the magistrates’ court. For either-way offences, it is defined as up to and including the allocation hearing at the magistrates’ court and, for indictable-only offences, the first hearing in the Crown Court.

The main thing that is conspicuous by its absence from the draft guideline is any consideration of the amount of information that a defendant should be in receipt of before they are called upon to enter their plea. The draft guideline seems to assume that the defendant or their legal representative will have been furnished by the Crown with sufficient information to enable them to make a well-informed decision as to whether or not to enter a guilty plea by the stage at which the draft guideline says they must enter the plea if they are to be awarded the full one-third discount.

The draft guideline does specify certain circumstances in which the full discount can be awarded if a plea is entered after the ‘first stage’, these being:-

• The defendant has admitted to the court and the prosecutor the behaviour that he admits, has insufficient information about the allegations to know whether he was guilty of the offence and it is necessary for him to receive advice and/or see evidence in order for him to decide whether he should plead guilty.
• In either-way or indictable only cases, where the Crown has not served the required information about the allegation at or before the beginning of the day of the first hearing and the defendant indicates a guilty plea to the court and the prosecutor within 14 days of service of the information, the plea should be taken as having been indicated at the first stage of proceedings.

The committee’s report rightly makes the point that these circumstances are too narrowly defined and suggests that the full discount should still be awarded for guilty pleas entered after the first stage where the defendant wishes to obtain legal advice before deciding whether to plead guilty but has been unable to do so. The report also suggests that the exception should also apply to summary only cases.

The report is a most welcome addition to the debate surrounding the draft guideline not only because it supports the concerns of criminal defence practitioners but also because it re-states some vitally important points of principle that are in danger of being eroded, even lost, by the current emphasis upon increased the “efficiency” in the criminal justice system. Those points of principle are, to quote directly from the report, that the right to know the basis of the prosecution’s case and a defendant’s right of access to legal representation.

Criminal defence practitioners have long noticed that there is an increased trend amongst the judiciary towards dismissing concerns raised by defence advocates that they have not received sufficient information from the Crown to enable them to give proper advice on plea. The attitude encountered when such concerns are raised can be summarised as “he knows if he’s guilty or not”.

In an adversarial system that ostensibly has as one of its central tenets the requirement that the Crown brings the case and must prove it beyond a reasonable doubt, such an attitude is deeply corrosive and dangerous. By bringing criminal charges against a defendant, the Crown indicates to the court and to the defendant that it believes that is has evidence sufficient to provide a “realistic prospect” of conviction, therefore the full extent of the Crown’s case should be available to a every defendant should they wish to know it. Any erosion of this principle could lead to speculative charges i.e. to cases being brought on less than complete evidence in the hope of coercing a guilty plea from a defendant who fears losing the sentence discount because it could make a difference of years to any possible prison sentence, or fears losing the sentence discount because it could even make the difference between going to prison or not. The nightmare scenario is that of the innocent defendant who is pressured into pleading guilty because he simply cannot risk losing the sentence discount.

Such an attitude also fundamentally undermines the role of the defence advocate. The most important piece of advice that any advocate can give to their client is whether or not to plead guilty. That advice is not simply based upon whether or not the client admits the offence. It is also based upon the strength of the Crown’s case and the likelihood of conviction after trial. If the advocate is denied the opportunity to give their client advice about the strength of the Crown’s case, the advice is incomplete and could potentially be negligent. Access to proper legal representation is therefore denied if the defence advocate is denied an opportunity to assess the strength of the evidence in some form. “He knows is he’s guilty or not” makes the role of the defence advocate redundant to the extent that they might as well not be there.