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Safeguards on Sentencing

The Sentencing Guidelines Council’s current consultation on updating guidelines for reduction in sentences for guilty pleas must cause concern for defence practitioners. We have long been concerned about the effect of credit provisions on defendants. It is not the case in all matters that defendants simply ‘know their guilt’; it is not always so clear-cut.

It might be as simple as a defendant being unable to remember an incident. Sometimes the charges put forward by the Crown reflect the prosecution’s judgement of the evidence, so without sight of the same material the defendant cannot judge if they are guilty of the specific offence alleged.

Sometimes, assessing whether a person is guilty according to their account of events demands finely balanced judgement, based on in-depth knowledge of the law.

It is suggested that the credit for ‘late’ guilty pleas should be cut further. For such an approach to be seen as fair, there must be adequate safeguards in place to ensure that the prosecution serves most of its case and certainly the parts necessary to assess guilt fully by the time the defendant is expected to enter their plea. Anything less simply reinforces the position that it is not ‘reasonable’ to wait to see the evidence before pleading.

There is worrying reference in the consultation of the need to ensure defendants do not have scope 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! Many practitioners will share my concerns that these proposals further erode the principle that it is legitimate for the defence to test and question evidence and put to proof.

It is a fundamental principle that the prosecution takes the case and it is for the prosecution to prove it. A jury hears these words repeatedly at trials.

Even under these proposals, defendants can wait to see if the prosecution can prove the case before entering a guilty plea, but there will be serious consequences for those that do.

This article first appeared in the Law Society Gazette.