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?