Credit for guilty pleas – the new proposed guideline and its implications for defendants.
Credit for guilty pleas – the new proposed guideline and its implications for defendants.
On 11th February 2016, the Sentencing Guidelines Council (SGC) announced a 12 week consultation on a new proposed guideline for reduction in sentences for guilty pleas.
The concept of a receiving a ‘discount’ – or reduction – in a criminal sentence as incentive for an early admission of guilt, was enshrined in statute by section 144 of the Criminal Justice Act 2003. When sentencing a defendant who has pleaded guilty, a court is required to take account of the stage in proceedings that plea was entered.
Under the existing sentencing guidelines, if a person pleads guilty at the ‘first reasonable opportunity’, they could be entitled to a maximum reduction of a third of the eventual sentence. In other words, they should receive a third off the sentence they would have got if they were convicted after a trial. If a defendant waits until after a trial date is set to plead guilty, the credit they get is reduced. The maximum discount is a fourth of the sentence. If the admission is made ‘at the steps of court’ or even after the trial has begun, then this maximum possible discount falls to a tenth.
The logic behind reducing sentences in this way is that facilitating early admissions of guilt saves prosecution costs, frees up the courts and spares the victims the emotional trauma of having to participate in court proceedings. Also, the earlier a person admits their guilt, the greater their remorse may be seen to be.
What this new draft guideline proposes to do is encourage more defendants who are ‘aware of their guilt’ to plead guilty as early as possible. It does this by proposing more stringent time-frames by which the plea must be entered, fettering judicial discretion in allowing discounts.
Under the proposed guideline, for a defendant to avail themselves of the maximum one-third reduction in sentence, they must plead guilty at their first hearing. This will be the first appearance before the Magistrates if the offence is a ‘summary only’ or ‘either way’ offence, or at the first hearing at the Crown Court if the matter is an indictable offence. Anyone who enters a guilty plea after this time will generally not qualify for the one-third reduction. The maximum reduction the defendant will be allowed after this will be a one-fifth reduction in the eventual sentence. Even this will only be given if the plea is entered 14 days after the initial hearing in ‘summary only’ cases or 14 days after the first hearing in the Crown Court in ‘either way’ cases sent up to the Crown Court, and 28 days after initial disclosure in indictable cases. The maximum one-tenth reduction for pleading on the day of trial remains.
It is important to look at what happens in practical terms at different points in the proceedings to see the consequences of the present guidelines and proposed changes are. At the ‘first opportunity’ to plead (often the first hearing), rarely will the Crown’s case be served in its entirety. In many cases the defendant will be expected to rely on a summary of the evidence prepared by police. It is very likely that if there is any CCTV it will not be served at this early hearing. Nor will medical or forensic evidence or expert reports.
Let’s look at an example of a case we recently dealt with. A man of good character found himself charged with causing grievous bodily harm – an either way offence. He recalls the alleged victim acting aggressively towards him. He responded by swinging a single punch, knocking the man unconscious. The police had seized CCTV of the incident but it was not available at court. The victim said in his statement he could recall nothing of the incident. He was taken to hospital but was discharged that night. Our client accepted he punched him but felt he was defending himself. For self-defence to be accepted, the Court would have to be convinced the force used was reasonable. The case rested on the CCTV. Without seeing it, we could not advise on how likely it would be that the force used would be considered reasonable. Without viewing medical evidence we could not assess whether the injury sustained was truly ‘grievous’ or might more reasonably fall within the lesser offence of actual bodily harm.
Under present guidelines, the defendant’s failure to plead guilty at this first hearing at the magistrates’ court could lead them to miss the opportunity for a full third reduction on their sentence. The new proposals further entrench this.
The Crown are only obliged to serve all the evidence they intend to rely on later in the proceedings. Sometimes even vital, key evidence is not served until late into the case. So, a defendant that waits to see this evidence will be significantly prejudiced. One that has a tardy prosecutor who waits until close to trial or even during a trial to serve key evidence will be particularly badly served by the proposed changes.
Defence practitioners have long been concerned about the effect of credit provisions on defendants. We see our role as assessing and questioning the evidence. It is not the case in all matters that defendants simply ‘know their guilt’. Matters are not always so clear cut. Sometimes assessing whether a person is guilty according to the account demands finely balanced judgement, based on in depth knowledge of the law. Sometimes defendants can’t remember the incident and so must wait to see what is alleged. Sometimes the level of the offending is based on prosecution judgement of the evidence and without sight of the same material a defendant cannot judge if they are guilty of the specific offence alleged.
Requiring a guilty plea to be entered at a specific fixed time in the proceedings to avail of the maximum discount is problematic. For such an approach to be seen to be fair, there must be adequate safeguards in place to ensure that the prosecution serve most of its case – and certainly the parts necessary to fully assess guilt – by the time the defendant is expected to enter their plea.
The proposed changes further reinforce the position that it is not ‘reasonable’ to wait to see all the evidence before pleading. There is worrying reference to the need for defendants to admit ‘what they have done’ and ‘not to play the system’. Many defence lawyers feel it is not ‘playing the system’ for a defendant to want to be fully advised on the evidence before entering a plea. After all, it is a fundamental principle that the prosecution take the case and it is for the prosecution to prove it. Defendants can still wait to see if the prosecution can prove the case before entering a guilty plea – but woe betide those that do.
The consultation ends on 5 May 2016.
More details can be found here:
http://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-sentence-for-a-guilty-plea-Draft-guideline.pdf