VIEWS: 6 PAGES: 3 POSTED ON: 10/20/2011
INDICATION OF SENTENCE 1. General. A judge dealing with a case may be asked by the accused to give, & if asked, is entitled to give an indication, which should ordinarily be as to the maximum sentence he would impose on the accused if a plea of guilty were to be tendered at the stage at which the indication is sought: R v Goodyear  3 All E R 117. The procedure takes place in public in open court, in the presence of the accused, with both sides represented & the hearing recorded in full. This will usually be at the Case Management Hearing. 2. The potential advantages of such a procedure include, first & foremost, that the accused himself can make a better-informed decision whether to plead guilty or not. Experience suggests that this would result in an increased number of early pleas of guilty, with a consequent reduction in the number of trials, & in the number of cases which are listed for trial & then are aborted at the last minute - usually at considerable inconvenience to those involved in the intended trial, especially victims & other witnesses. Properly applied, there may be a reduced number of sentences referred by the Attorney- General to the Court of Appeal on the ground of undue leniency. In short, such an improvement in the efficient administration of justice will not impinge on the accused’s entitlement to tender a voluntary plea. 3. Limits on practice. The judge should not give an advance indication of sentence unless one has been sought by the accused; but, in an appropriate case, he may remind the defence advocate that the accused is entitled to seek an advance indication of sentence. The facts of the case must be agreed as the basis for sentence, &, if necessary put into writing by the parties. Without such agreement, the judge should refuse to give an indication: otherwise he may become inappropriately involved in negotiations about the acceptance of pleas & any agreed basis of plea. 4. Discretion to refuse indication. In whatever circumstances an advance indication of sentence is sought, the judge retains an unfettered discretion to refuse to give one. It may indeed be inappropriate for him to give any indication at all. In particular he may consider that if he were to give an indication at the stage when it is sought, he would not be able properly to judge the true culpability of the accused, or the differing levels of responsibility between several accused. From a practical standpoint, this is a very important consideration. 5. Furthermore he may (1) consider that, for a variety of reasons, the accused is already under pressure (perhaps from a co-accused), or vulnerable; & that to give the requested indication, might create additional pressure; or (2) be troubled that the particular accused, despite being represented, may not fully have appreciated that he should not plead guilty unless he is in fact guilty; or (3) be concerned, in a case with several accused, that an indication given to one who seeks it, may itself create pressure on another accused. 6. There will be cases where the judge considers that the request for an indication is merely a cynical attempt, by an accused who intends or is likely to plead guilty in any event, to take tactical advantage of the changed process; in such a case, the judge will probably refuse to say anything at all; & may take the view that a plea of guilty tendered after such tactical manoeuvring is not tendered at the first reasonable opportunity & thus calls for a reduction in the discount for a plea of guilty. 7. Instead of refusing to give an indication, the judge is entitled to reserve his position until such time as he feels able to give one, for example, until a pre-sentence report is available. There will be cases where a psychiatric or other report may provide valuable insights into the level of risk posed by the accused, &, if so, the judge may be justifiably unwilling to give an indication at the stage when it is sought. Again, the judge may not be sufficiently familiar with the case to give an informed indication; & if so, he may defer doing so until he is. 7. Reasons for decision. In a case (1) of an outright refusal, the judge will probably conclude that it is inappropriate to give his reasons; (2) where he has in mind to defer any indication, he may choose to explain his reasons, & further indicate the circumstances in which, & when, he would be prepared to respond to a request for an indication of sentence. If at any stage the judge refuses to give an indication (as opposed to deferring it), it remains open to the accused to seek a further indication at a later stage. Once he has refused to give an indication, however, the judge should not normally initiate the process, except, where it arises, to state that the circumstances had changed sufficiently for him to be prepared to consider a renewed request for an indication of sentence. 8. Binding effect of indication. An indication, once given, is binding &: (1) remains binding on the judge who has given it; & (2) binds any other judge who becomes responsible for the case. If, after a reasonable opportunity to consider his position in the light of the indication, the accused does not plead guilty, the indication ceases to have effect. 9. Some basic principles. The following principles are still valid: (1) an advocate must be free to give the accused the best advice he can, &, if necessary, in strong terms; it will often include advice that a plea of guilty is a mitigating factor which will usually result in a reduced sentence; (2) the advocate will of course emphasise that the accused must not plead guilty unless he has committed the acts constituting the offence charged; (3) the accused, having considered the advocate’s advice, must have complete freedom of choice whether to plead guilty or not guilty. 10. No plea bargaining. The defence should not seek an indication while there is any uncertainty between the prosecution & the defence about : (1) an acceptable plea to the indictment, or (2) the facts that will form the basis for the sentence. Any agreed basis should be put into writing before an indication is sought. The judge should never be invited to give an indication on the basis of what would be, or what would appear to be a ‘plea bargain’ . He should not become involved in any discussions linking the acceptability to the prosecution of a plea or basis of plea, & the sentence which may be imposed. He is neither conducting, nor involving himself in plea bargaining. In short, he is not asked to indicate levels of sentence which he may have in mind depending on possible different pleas. Thus, for example, he should refuse to give an indication based on the possibility that the accused might plead guilty to Wounding with intent to do grievous bodily harm (s. 18, Offences Against the Person Act 1861), or the lesser offence of Wounding (s. 20). 11. The prosecution. There are a number of specific matters for which the advocate for the prosecution is responsible. Thus:- (1) if there is no final agreement about the plea to the indictment, or about the basis of facts for sentence, & the defence nevertheless seek an indication which the judge is considering giving, the prosecution advocate should remind him of the guidance given above that the an indication of sentence should not normally be given until the basis of facts has been agreed, or the judge has concluded that he can properly proceed to sentence without the need for a hearing before him (called a ‘Newton’ hearing) to resolve the dispute between the parties about the facts that would form the basis for sentence. (2) if an indication is sought, the prosecution advocate should enquire whether the judge is in possession of, or has had access to all the evidence relied on by the prosecution, including any: (a) any personal impact statement from the victim of the crime; and (b) information about the previous convictions recorded against the accused. (3) if the process has been properly followed, the prosecution advocate will need to do no more, before the judge gives an indication, than: (a) to draw the judge’s attention to any mandatory or minimum sentence required by statute; to offer assistance with any relevant Guideline Cases, or the views of the Sentencing Guidelines Council. The prosecution advocate should not say anything which may create the impression that the sentence indication given has the support or approval of the prosecution. 12. Procedure at hearing. There should not be any opening speech by the prosecution at this stage, or any speech in mitigation by the defence. These will only take place after the accused has pleaded guilty. Generally speaking, the process ought to be very short, the judge bearing in mind that the accused & the public are present; that the judge may be the trial judge, & that he is simply deciding whether to respond, & if so, how, to a request that he give an indication of the maximum sentence he would pass if the accused pleaded guilty at that stage. Since the case may yet proceed as a trial (following a plea of not guilty),& if it does, no reference may be made to the request for a sentence indication, reporting restrictions should normally be imposed, to be lifted if & when the accused pleads or is found guilty. If the procedure is properly followed, there should be very little need for the judge to involve himself in discussions with the advocates, although obviously he may wish to seek better information on any aspect of the case which is troubling him.
"INDICATION OF SENTENCE"