Wednesday, 24 February 2016

Set up courts in pubs and hotels says Lord Chief Justice

Lord Chief Justice wants to see court hearings in pubs

As Lord Chief Justice, Lord Thomas is the most senior judge in the country (I’m not entirely sure how that is the case since he sits in the Court of Appeal and you’d think the President of the Supreme Court would be the boss, but clearly that’s the hierarchical mess you’re left with when you appoint non-judges to the role of Lord Chancellor) and he wants to modernise the justice system. 

Lord Thomas has come up with the bright idea of judges pitching up in pubs, town halls and hotels to hear cases – I doubt it’s all his idea, I suspect that one of the 24% of alcoholic lawyers in practice may have guided him.  In fact, I’m sure I’ve heard this idea before but last time it was the Ministry of Justice who were planning to open courts in shopping centres

I must admit that I quite like the idea of a pint during trials, would make things flow well.  Could bring back smoking too, I know we’re not supposed to say or think it but I always thought smoking looked kinda cool.

How sensible are these plans?  Not very is my opinion.  Cases are frequently becoming more technical, by which I mean more evidence is being served and presented during hearings electronically on screens in court.  Can you imagine the cost of setting up screens and click-share at the bar of the Red Lion?  It’s also worth remembering that courts are supposed to be places in which Her Majesty’s judge’s dispense justice in the name of Her Majesty.  The idea of deciding important matters while sitting in a Travel Inn on the M5 just doesn’t seem compatible with that purpose.  You may well be thinking “ahh yes, Nick.  But, surely they’d only be dealing with minor cases not important ones?”  Well you’re probably correct – the case probably isn’t important to you in the slightest but it may well be important to the people involved.  It might only be a dispute over whether a fence is on John’s land or Sarah’s land but to them it’s a big deal.

The evolution that Lord Thomas is touting, and which might actually happen, is a move towards online justice.  I’m not wholly comfortable with it myself but I gather the idea is to get more people handling their own cases online without recourse to solicitors.  I’m not comfortable with that for a number of reasons.  The main ones are that lots of people aren’t computer savvy and even today I find surprisingly young people who have no email address – only last week I met a 21 year old who has no access to a computer, smart phone, etc. 

More importantly from Lord Thomas’s point of view is that people have very funny ideas about what the law is (or should be).  You only have to look at the comments pages of most newspapers to see that people really have no idea, e.g. I read a story that somebody died in a fire and that Boris Johnson had cut the number of fire engines in that area from 5 to 2.  Below the story were urgent calls for Mr Johnson to be tried for murder, corporate manslaughter and a whole host of other crimes.  You see that kind of thing all the time and it’s not because people are stupid but because they really have no idea what the law says.

With that in mind what happens if we remove lawyers from the mix and encourage people to go to law by themselves?  I’d suggest the answer is that a lot of cases that would previously have be stopped by advice from a solicitor will clog up the courts and cause lots of delays, which is precisely what happened when legal aid was removed from family proceedings

The government no doubt hopes to mitigate the delays caused by litigants in person bringing cases that should never see the inside of a court by pushing people towards non-court options, such as mediation.  The reality though is that mediation is unsuitable in many cases and so the chances are we’ll see even more court delays in future

Thursday, 11 February 2016

Defendant’s told to plead guilty in return for reduced sentences

Man with back turned to camera wearing a hi-vis Community Payback tabard
New guilty plea reduction guidelines consulted upon

Today the media are reporting on a consultation by the Sentencing Guidelines Council to reduce the sentences of defendants who agree to plead guilty.  The Guardian says, “[d]raft guidelines say for maximum reduction, defendants must plead guilty at first opportunity in court, with cuts dropping thereafter until trial”.

This news will come as a shock to most criminal solicitors and barristers given that in 2003 Parliament passed the Criminal Justice Act, section 144 of which requires courts to take into account the guilty plea, when it was entered and the circumstances of the plea.  The provision in the CJA 2003 wasn’t even particularly new when it was passed.  Criminal solicitors and barristers will also be aware of the Sentencing Guidelines Council’s “Reduction in Sentence for a Guilty Plea – Definitive Guideline” document, which was last revised in 2007 and gives all sorts of guidance on reducing a sentence to reflect a guilty plea.

The changes proposed by the Council amount to little more than tinkering around the edges and are not a wholesale reform that you might expect from some of the media’s reporting.

Currently, a typical defendant who pleads guilty can expect a reduction in his or her sentence depending on the stage at which the case has reached.  The Definitive Guideline even contains this helpful diagram:

Extract from Definitive Guideline on sentence reductions 2007

You’ll remember that the Guardian told us that under the new proposals defendants will have to plead guilty at the first opportunity to get the maximum reduction and that reductions will drop thereafter?  As you can see from the diagram above that is a pretty accurate reflection of the situation as it stands right now.

Today, the judge may reduce the discount if it is felt there is a good reason to do so.  One such reason might be because the prosecution case is overwhelming and the defendant has no real choice but to admit his crime.

In practice, courts rarely cut the level of the reduction – bearing in mind that I specialise in defending drink driving cases and the prosecution case is often overwhelming, I have never had a court cut a sentence reduction.  Even before I began specialising in drink driving cases, I never had a court reduce the discount even where the offence was serious.

The Council’s main proposal seems to be to do away with the judge’s discretion to reduce the level of discount.  This would mean that if a defendant pleads guilty at the earliest opportunity he will receive the full discount no matter what.  This will mean that where a defendant pleads not guilty and changes his plea he will no longer be able to ask the judge to give him the full discount anyway.  There are often good reasons for not pleading guilty at the earliest opportunity; not least that the prosecution almost never bother to serve any evidence until a defendant pleads not guilty.  This makes it impossible for the defence to decide whether the Crown can prove their case and as we have an adversarial system that is the all-important question.

Another proposal by the Council is to remove any credit for a plea after the trial has begun.  This may seem sensible, but some trials can last months and if there is no incentive for a defendant to stop a trial that is clearly going against him he may be inclined to waste more court time by carrying on with it.

For the vast majority of cases heard in England and Wales these changes will make little if any difference.  But, there is an important point here.  When the sentencing guidelines were first introduced sentencing in courts became more rigid over night as courts began following the guidelines as if they were gospel law rather than just guidelines.  The higher courts were even called to rule that the guidelines are just guidelines and should not be followed slavishly.  Even today, getting magistrates to go outside a sentencing bracket in a drink driving case is an uphill struggle.  What we see here is another chip away at the power and discretion of the judiciary to decide cases justly. 

If adopted, will these proposals result in more guilty people pleading guilty earlier or simply less people changing their plea after the first hearing?  Experience tells me that very few clients are desperately concerned about the sentencing discount when there is a chance they might be found not guilty.