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Beware the new early guilty plea sentencing guidelines

Criminal defence practitioners this week will have approached the publishing of the new definitive guideline on reduction in sentence for a guilty plea, which becomes effective in June, with some trepidation. The proposed guidelines released last year for consultation seemed to demonstrate a worryingly prescriptive approach and suggested a significant limiting of reductions in sentence for pleas proffered after the first hearing.

There must be some relief then that the present levels of reduction for guilty pleas remain. The maximum is still one third reduction on the sentence that would have been passed after a contested trial. And the maximum for pleas entered later remains one quarter, reducing to a tenth on the day of trial.

But there will be concerns, and these are really two-fold – fear that these provisions will encourage those not guilty to plead guilty and concern that the stage at which a defendant must plead guilty to get the maximum sentence reduction is too early to allow meaningful assessment of the evidence and legal advice.

The press release from the Sentencing Council says the new definitive guideline is ‘directed only at those wishing to enter a guilty plea and does not place pressure on defendants to plead guilty if they do not want to’. Some may consider this just a little disingenuous.

Previous guidance stated that maximum credit should be given for guilty pleas offered at ‘the first available opportunity’, so judges retained some discretion as to when it was ‘reasonable’ for a defendant to have pleaded guilty. In recent years we have seen judicial discretion increasingly fettered and these new guidelines sail the same course. From June, to get the full third reduction a defendant must plead guilty at the ‘first stage of proceedings’. This is defined as the hearing where a plea or indication is sought. For most defendants, this will be in the magistrates’ court and will be the first hearing in their case.

To understand the significance of this change, it has to be appreciated what is provided to defendants at the first hearing. The Crown should serve Initial Details of Prosecution Case. In the vast majority of cases, this will not be a full picture of the case against the defendant. It may simply be a summary of what is suggested to be the evidence, prepared by a police officer.

This summary will outline what is considered the key evidence and may be silent as to weakness in the case. Certainly it will be a rare case where CCTV, forensic or expert evidence is served. So defendants may have little to go on – other than the suggestion of a strong case. Against this, they will be well aware that the maximum reduction ends on this day and significantly reduces thereafter. The court clerk will remind them of this and solicitors must confirm they have advised on the credit advantage of a guilty plea.

To penalise defendants for not pleading guilty in the face of limited disclosure suggests all those who come before the courts know – without viewing the evidence – if they are guilty or not. For many defendants, matters are just not that clear cut. Sometimes they may not be able to remember an incident and want to see evidence of their wrongdoing. Sometimes the level of offending and the actual crime committed is based on prosecution judgement of material and they want their legal advisers to be able to see and assess the same evidence before advising. Some may not have been able to secure the legal adviser of their choice because they could not finalise their legal aid application in time.

The tone of the new definitive guideline is clear – it is simply not reasonable to wait to assess evidence and be advised by the solicitor of your choice before entering your plea. It is a fundamental principle that the prosecution takes the case and it is for them to prove it. There is nothing here that prevents a defendant waiting to see the case against them, assess it and be advised on it, before entering a guilty plea. But woe betide those that do.

This article was first published in The Justice Gap.