Benjamin Knight sets-out the bumps in the road ahead for the guilty plea regime.
On 1st June 2017, big changes come to the system of credit for guilty pleas. A failure to advise on the new guidelines at the magistrates’ court will have severe consequences for your lay client and maybe for your professional indemnity insurance.
Perceptions of the “credit” scheme
The system of credit or discount on sentence to reflect a timely guilty plea has been controversial since its inception. The government introduced it to reflect the reduced impact an offender has upon the public purse, witnesses, victims, and legal aid. But many journalists and politicians have attacked it as somehow “letting defendants off lightly”.
It became a mandatory part of the advice given by lawyers to their clients at the earliest stage in proceedings – often to the consternation of those clients; many of those clients wondering why the person “on their side” was starting their relationship with advice on rolling over.
Then it became a part of the series of questions asked in open court at the first hearing. In those same hearings, judges began “actively managing” cases and, in many cases expressing their views on the viability of defences outlined at that stage. This has led to many defendants wondering why the judge is questioning their lawyer as to whether they have done their job properly. It has also led defendants to wonder whether judges are, in fact, independent.
Then came the active case management hearings; those short-notice listings before presiding judges, designed to determine whether the Crown and defence really intend to run the matter to trial.
Defendants are now routinely asked about their intended or maintained plea of Not Guilty around five times before getting anywhere near a jury.
Until now, the general practice of judges has been to allow one-third credit for guilty pleas at PTPH; one-quarter or thereabouts between PTPH and trial; one-tenth on day of trial. Some judges have given a full third on day of trial, leading to trials cracking. Some judges have reduced credit from a third at the first hearing if, in their view, the evidence against the defendant was “overwhelming”. The Court of Appeal has expressed various views about the way in which credit has (or has not) been applied to individual cases.
In short, there has been considerable inconsistency around the country and even within the same courthouse. The press has routinely chosen to misunderstand/misrepresent the application of the scheme in order to create scandal.
It is certainly right that guidelines needed clarification.
Unfortunately, the new guideline, in force from 1st June 2017, will be seen by some as less a clarification and more like an additional measure to apply pressure on defendants to plead before knowing the case against them.
The guideline applies to all defendants aged 18 or over. It applies to all cases, regardless of the date of the offence(s) where the first hearing is on or after 1st June 2017.
It applies in the magistrates’ courts and the Crown Court.
The only routes to a full one-third discount on sentence are:
- Guilty plea in the magistrates’ court; or
- Guilty plea and committal for sentence; or
- Indication of a guilty plea to an indictable only offence, followed by guilty plea at first hearing in the Crown Court.
- A situation where a “section F exception” applies in the opinion of the judge (see below).
It follows that one-quarter will be available at the PTPH stage and thereafter, somewhere between that and none (if the plea occurs after even a pre-recorded cross-examination).
Unsuccessful trials of issue will result in some or all credit being lost. R v Underwood looks as though it will be applied in the strongest terms where evidence is called.
There are flow-charts included within the guidelines.
I will break here to suggest that solicitors should provide a copy of the relevant flowchart to their lay client at the earliest stage. The finger of blame regarding lost opportunities for full credit may well start to point at those advising at the magistrates’ court as the new system beds-in.
Section F of the guideline contains a handful of lifelines to those seeking full credit. Those exceptions, as they appear in the guideline, are:
“F1. Further information, assistance or advice necessary before indicating plea
Where the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.
In considering whether this exception applies, sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.”
Whilst it is not considered proper for judges to resort to the cliché of “he knows if he did it or not”, this exception gets dangerously close. The first paragraph allows for the lawyer to inform the court that the particular circumstances of the case significantly reduce the defendant’s ability to understand the allegation (not the “case against him”, you’ll note).
The second paragraph qualifies the “exception” still further. You can, it seems, have time to advise properly and for the lawyer to have sight of evidence to understand whether there is a factual and/or legal defence but only if the judge accepts that that is what the delay was for. Otherwise, the judge may simply conclude that the delay is simply the defendant wanting to see what the case is against him.
This is not novel but it does place the lawyer in the lower court in a position where he may be criticised (maybe unfairly) in the Crown Court. It may create a position where privilege is put in peril. Maybe it will create a conflict between the lay client and their counsel.
It is anticipated that most judges will deploy some common-sense discretion (as they usually have when approaching credit) but the uniformity of approach may falter most frequently over this issue.
“F2. Newton Hearings and special reasons hearings
In circumstances where an offender’s version of events is rejected at a Newton hearing or special reasons hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should normally be halved. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction.”
This “exception” really does little more than slightly sharpening the reasoning given in Underwood (cited above).
“F3. Offender convicted of a lesser or different offence
If an offender is convicted of a lesser or different offence from that originally charged, and has earlier made an unequivocal indication of a guilty plea to this lesser or different offence to the prosecution and the court, the court should give the level of reduction that is appropriate to the stage in the proceedings at which this indication of plea (to the lesser or different offence) was made taking into account any other of these exceptions that apply.
In the Crown Court where the offered plea is a permissible alternative on the indictment as charged, the offender will not be treated as having made an unequivocal indication unless the offender has entered that plea.”
The sting is in the tail, here. If the defendant has not entered an indication to a permissible alternative offence, no full credit.
Think about how many times lawyers have to double-check whether an offence is an alternative. That will be a list etched in the mind of the advisor from 1st June. The full third credit is unlikely to be recovered in many cases under this “exception”.
“F4. Minimum sentence under section 51A of the Firearms Act 1968
There can be no reduction for a guilty plea if the effect of doing so would be to reduce the length of sentence below the required minimum term.
F5. Appropriate custodial sentences for persons aged 18 or over when convicted under the Prevention of Crime Act 1953 and Criminal Justice Act 1988 and prescribed custodial sentences under the Power of Criminal Courts (Sentencing) Act 2000
In circumstances where:
• an appropriate custodial sentence of at least six months falls to be imposed on a person aged 18 or over who has been convicted under sections 1 or 1A of the Prevention of Crime Act 1953;
or sections 139, 139AA or 139A of the Criminal Justice Act 1988 (certain possession of knives or offensive weapon offences) or
• a prescribed custodial sentence falls to be imposed under section 110 of the Powers of Criminal Courts (Sentencing) Act 2000 (drug trafficking offences) or section 111 of the Powers of Criminal Courts (Sentencing) Act 2000 (burglary offences), the court may impose any sentence in accordance with this guideline which is not less than 80 per cent of the appropriate or prescribed custodial period.”
These last two exceptions speak for themselves.
Protecting the lay-client’s credit
Lawyers are required to advise clients of the law as it relates to them. They must protect their clients’ interests. They must advise fully and properly on the scheme of credit for guilty pleas.
All of that in mind, it seems likely that, where defendants are charged with indictable-only offences, many defendants will indicate pleas of guilty in the lower court. This will create a presumption of one-third credit in the Crown Court. Before the case arrives in the Crown Court (except in one-stop-shop Crown Courts like Liverpool), IDPC can be analysed more thoroughly, conferences can take place, and proper consideration can be given.
If the defendant then arrives in the Crown Court and decides that he wishes to have a trial, he pleads not guilty and is no worse position than if he had indicated a not guilty plea in the lower court. If he decides that he is pleading guilty, he has retained his one-third credit without having to indicate his final position in the lower court.
There ought to be no impact on disclosure because, as the guideline says at the very start:
“Nothing in this guideline affects the duty of the parties to progress cases (including the service of material) and identify any issues in dispute in compliance with the Criminal Procedure Rules and Criminal Practice Directions.”
How long will it be before this is somehow negated? Time will tell but it has never been entirely clear why, if a case is being sent to the Crown Court following an indication of a not guilty plea, the issues for trial need to be identified at the magistrates’ court. I have never seen a case where the issue identified then resulted in the police or CPS providing anything further or going to the issue identified prior to the PTPH.
Whilst lawyers advise their clients to plead when they are guilty and to stand trial where they are not, defendants are not as “thick” as some previous Home Secretaries have thought them to be. Properly advised as to the law, they may well spot their opportunity to test the water.
The only obstacle to this approach is that the ordering of PSRs upon indication may result in some confusion. That said, it seems that PSRs upon indication are common in some areas of the jurisdiction and less so in others.
Likely consequences of the new guideline
Whilst the advice that will no doubt flow from this guideline will result in a modest increase in guilty pleas at the lower court, it seems unlikely that it will do much to ease the backlog of trials in many areas of the country.
The guideline implicitly views the defendant with a degree of cynicism. That may be well-placed in many cases but the problem with the noble aim of this guideline is that those same cynical defendants will not be swayed by the reduced credit on offer after they end-up in the Crown Court.
If they are choosing to “roll the dice”, derisory credit will not likely change their minds.
At present, many defendants are seemingly swayed to change their pleas to guilty before the trial arrives. Sometimes after PTPH; sometimes on the day of trial, even. Very often, the credit available is a major consideration for them. It brings with it a pressure to plead, whether that is the intention of the State or not.
Judges having the discretion to apply greater credit than would be generally expected is part of what keeps the system running. This guideline does not change the fact of judicial discretion. Expect judges to be reminded that these guidelines are just that and – all together – “not tramlines”. But the use of discretion where trials are cracked at a late stage may lead to greater scrutiny in future.
A missed opportunity to be fairer?
When the consultation took place into this guideline, I responded. I took part in one of the recorded interviews. My name is missing from the list of those who responded, I can’t help but notice.
One of my suggestions was that the emphasis should be placed on the disclosure of the IDPC.
For a lawyer to give proper advice, they ought to know what the case is against the defendant. It is still tediously predictable that CCTV, audio recordings, phone evidence (even in a basic form) and SFRs are missing from IDPC. This was never supposed to be the case. As pressure increases on the defence, the reciprocal expectations on the police/CPS have slipped in some areas.
A fairer approach might have been to allow the defence to formally raise the issue of inadequate disclosure before the question of plea is asked. Maybe an assumption that the absence of video recorded evidence means that the credit clock has not started to run?
Sadly, despite being told that these suggestions were a good and proportionate way to prevent the issues with section F, there’s not a trace of these in the new guideline. I cannot imagine that I was the only person to make these suggestions. Maybe defence lawyers have not raised their voices loudly enough.
There has been a missed opportunity to respect defence practitioners enough and to listen to them regarding the perception of justice being seen to be done. It is sad that insufficient defence lawyers respond to consultations but, since the protests over legal aid, many have become far more vocal. It is certainly the case that many defence lawyers despise the unfairness in disclosure. Indeed, talking to lawyers in other jurisdictions, England and Wales appears to be becoming a tail-light in disclosure regimes.
The CPS, police, and courts are crippled by under-funding and disproportionate focus on policy areas. Meanwhile, defence firms are crippled by squeezed fees and cash-flow crises at the hands of the LAA. This all leads to delays in proceedings. Delays in trials. Delays in justice being done.
It used to be the mantra of the Powers That Be that we must all “stop delaying justice”. Raise issues early. Get disclosure and service early. Get trials to be effective.
Now it seems that it’s only defendants who hold the answer and to “delaying justice” and the State thinks that is for them all just to plead guilty.