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

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.