Skip to main content

Sentencing reforms may lead to more trials

Reducing sentencing discounts will see more trials taking place

I note this morning the Times are reporting on plans by the Sentencing Council to tighten up the time limit for defendants to plead guilty and receive the maximum credit - effectively this will reduce the credit received by many defendants.

Currently, if a defendant pleads guilty he is "entitled" to a reduction in his or her sentence. Now, he's not really entitled to it but in effect almost every defendant will get the maximum discount if they plead guilty at the first opportunity, so "entitled" is a convenient shorthand.

The maximum discount is one-third off the length of a sentence and that drops the closer you get to trial. There was an attempt a couple of years ago to tighten up on this but it seems to have been largely forgotten in the courts I appear in. The attempt was quite silly and saw some very inconsistent and overly rigid approaches adopted. Some courts were refusing the maximum discount unless you made a full confession to the police and others refused to preserve credit where a case was adjourned for the defendant to obtain legal advice or for the prosecution to provide evidence to the defence. The mantra, "the defendant knows if he did it" was wheeled out by magistrates and judges who should know better - particularly because the question is not whether the defendant "did it" but whether the prosecution can prove he did it!

MPs, showing some surprising acumen for once, point out that if the discount is reduced then it removes the incentive for people to plead guilty. This is very true. You only have to look drink driving cases where there is a minimum sentence for offences at the bottom end of the scale and so there is absolutely no incentive for defendants to plead guilty. Many feel that if they're going to be banned for 12 months either way then they might as well stick in a not guilty plea and chance their luck that the prosecution will balls something up and they'll get away with it - it happens more than you might imagine!

So, what will happen if the timetable for pleading and obtaining your discount is reduced? I suggest that the MPs are completely correct in their view that you'll see more trials taking place. Many sensible defendants who have a case that could go either way will balance up the risk of fighting a losing a trial against the sentence they'll receive if they plead guilty.

I have a case at the moment where the defendant thinks he wasn't given the proper warnings and requirements during the drink driving breath test procedure. The prosecution kindly served the evidence, including witness statements and the MGDD/A, the document that records what happened during the breath test procedure. Mysteriously, the pages dealing with the parts of the test that the defendant thinks may not have been done properly are missing - everything is there before and everything is there after! Let's say this chap insists on an adjournment so the missing pages can be served. Many years ago the last Labour government (I think it was they) introduced CJSSS, a scheme that says among other things that a plea should always be taken at the first hearing. So, the court insisted on a plea - to get his papers, my chap can only enter a not guilty plea. This means a trial date will have been set. The CPS serve the missing evidence and it shows that the police did put the required warnings to him. Under these proposals he now has a choice of accepting the significantly reduced discount for a guilty plea or going ahead with the trial. He's already got a date set, has incurred legal costs so why not go ahead he might think? He's nothing to gain by pleading guilty now and there's always a chance a witness won't show and the case against him will collapse.

I'm sure he won't be the only person faced with such a choice.

While I think the MPs are correct about the increase in trials, I think they may be barking up the wrong tree about the need for 4,000 extra prison spaces - maybe. The real problem is that our Criminal Justice System is chronically underfunded and on the brink of collapse. Senior judges are trying to shunt even more work from the creaking Crown Courts back on to the magistrates courts, which are already being crushed under the weight of their own workload. Chuck in an extra few thousand trials (if the MPs reckon 4,000 extra prison spaces then you better bank on an extra 4,000 trials taking place to lead to those extra prison sentences) and you have a recipe that might just push the Criminal Justice System over the edge.

Then again, we'll probably be leaving the EU in a few weeks and I understand from the Leave Campaign that will free up squillions of £££s. Maybe a few quid of that could be chucked toward our justice system - you know the thing that used to be the envy of the world, with all its fairness and what not?


  1. I thought the idea of the discount was to encourage people to plead guilty if they know they are and so avoid the expense and time of a trial?

    In the example you cite, it's unclear whether the defence is made out although it sounds like they are relying on a technical error (I'm not saying that's wrong). So in this case it seems reasonable to put the matter to the test. Where there is some reasonable doubt then it seems fair to go to trial to me, or to decide to adjourn for the apppriate evidence. Personally I'd expect my solicitor to make a good case for discount in this type of situation where the crown haven't served information in time for an early guilty plea.

    On the other hand, simply waiting until there is incontrovertible evidence, and pleading guilty late shouldn't attract much, if any discount. If I recall correctly an early guilty please where the evidence is irresistible doesn't necessarily attract the full discount anyway.


Post a Comment

Popular posts from this blog

Ched Evans

Before I begin, I will say that at around 4,500 words this is probably the longest blog I’ve ever posted but I think it’s all necessary to set the scene for this case and explain the background that has been largely ignored or airbrushed in the press. Despite its length, I have not attempted to include every little detail of either fact or law but have done my best to provide a balanced picture of the Ched Evans case, what happened and why the courts reached the decisions they did. There has been so much written about the Ched Evans case over the past weekend, much of it based on a very shaky grasp of the facts and law, that I decided I would read up about the case and weigh in (hopefully on a slightly firmer footing than most of the articles I’ve read so far).

Broadly speaking there seem to be three groups who have opinions on the case:
1.Sexual violence groups (including people describing themselves as “radical feminists”) who appear to take the view that the case is awful, the Court o…

How do the police decide whether to charge a suspect?

A question I’m often asked by clients (and in a roundabout way by people arriving at this blog using searches that ask the question in a variety of ways), is “how do the police decide whether to charge or take no further action (NFA)?”
What are the options?
Let’s have a quick think about what options are available to the police at the end of an investigation.
First, they can charge or report you for summons to attend court.  Charging means that you are given police bail and are required to attend court in person.  A summons is an order from the court for you to attend or for you to send a solicitor on your behalf.  In many cases where a person is summonsed, the court will allow you the option of entering a plea by post.
Second, you may be given a caution.  These can be a simple caution, which on the face of it is a warning not to be naughty in future, or it can be a conditional caution.  Conditions could include a requirement to pay for the cost of damage or compensation, etc.  Either…

Bid to prevent defendants knowing who accuses them of a crime

When I read The Trial by Kafka and Nineteen Eighty-Four by Orwell, I took them as warnings of how a bad justice system wrecks lives of those caught up in it. Sadly, some Members of Parliament and the House of Lords seem to view the books more as a guide to how they would like our Criminal Justice System to run. Today, I read of plans to hide the names of accusers and witnesses from defendants in a large number of cases. Victims of sexual offences, such as rape, have had the right to lifelong anonymity for many years now. This means that it is a criminal offence to publish information that will lead to a complainant being identified. A Bill currently being considered by Parliament would extend that anonymity to bar defendants and their lawyers knowing the name of the person accusing them. This would apply not only in sexual offences, as has been reported in the press, but also in violent offences.
The anonymity currently offered to victims of sexual offences is not total, the complainant…