Credit for guilty pleas

One of the basic principles of the English & Welsh Criminal Justice System is that it is an adversarial process.  People like to think that this is somehow different to the rest of Europe but that isn’t true.  They do have slightly different system but when somebody says “I am not guilty” then they pretty much all adopt an adversarial process that we would recognise.  Anyway, aside about Europe over.

Royal Courts of Justice

Because the system is adversarial it is for the prosecution to prove the allegation they make against the defendant so that the jury or magistrates are sure that the defendant is guilty.  This requires the prosecution to produce evidence of the defendant’s guilty that the defendant can either accept or challenge.

When a defendant pleads guilty he or she is accepting the prosecution case against him in its entirety, unless he puts forward a basis of plea setting out that he is guilty but on different facts to those alleged by the prosecutor, which may be accepted or rejected.  If a defendant is guilty he should usually plead as he will receive credit from the judge for admitting his offence, which is reflected in a reduced sentence.

Deciding whether somebody is guilty or not therefore requires that the defendant knows what he is alleged to have done.  This sounds simple but it’s not what is happening in Crown Courts across the country at the moment.  The Court of Appeal (Criminal Division) (CACD) has spent that last 18-months or so producing an ill-thought out line of judgments that restrict the discount available to defendants who do not plead guilty at the earliest opportunity.  Normally the earliest opportunity was taken to mean the first time the defendant was asked to enter a plea – in the Crown Court this was the Plea and Case Management Hearing (PCMH).  But, the CACD’s rulings appear to have shifted the earliest opportunity back to a formally defunct hearing called the prelim where the defence regularly have little or no evidence.  In some cases, judge’s even shift this point back to the police interview – a point at which neither defendant nor his lawyer knows the case against him and at which the police have zero obligation to provide disclosure – and in one case the point moved to before the police interview.

I recently represented a man accused of being involved in a mortgage fraud.  He lives in in the Far East and was initially spoken to by police officers who travelled abroad to meet him as a witness.  To begin with he told them that he wasn’t involved and knew nothing about the crime.  A little later he changed his mind and decided to come clean.  He arranged to return to the UK voluntarily and went so far as to turn Queen’s Evidence, which means he actively assisted the police and prosecution by providing evidence to them.  He was prepared to give evidence at the Crown Court against co-conspirators but the trial judge ruled that because the prosecution failed to serve his evidence in time admitting it would be prejudicial to the other defendants.  The first time he was interviewed by police under caution he made full admissions to the offence.  Despite this the trial judge refused to allow the maximum credit because he had failed to admit he offence when first spoken to by the police, despite him not actually being under caution or even a suspect at the time!

Last week I advised a teenage defendant at the Crown Court to enter a not guilty plea to a drug dealing and money laundering charge because the prosecution had provided no disclosure whatsoever.  I asked the judge to preserve credit on the basis that we had no idea what he was alleged to have done beyond the bare assertions on the charge sheet (not even an indictment!).  The judge’s response was that the CACD has ruled out the possibility of credit being given to defendants who do not plead guilty at the first opportunity and refused to preserve credit (or delay the entering of a plea) until we had some idea of what he was accused of doing.

That young man was very nervous and wanted to plead guilty.  He gave me very clear instructions that he was not guilty.  He wanted to plead guilty simply because he was scared and because he had heard he would get a harsher sentence if he did not say he was guilty.

The move by the CACD toward this more draconian approach to credit for guilty pleas can only lead to unnecessarily lengthened sentences and when coupled with the government’s ridiculous legal aid reforms to more people falsely admitting things they haven’t done.