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					re Consultation Paper on Reduction in Sentence for a Guilty Plea

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Response from the Criminal Bar Association dated 3              February 2004

Introduction

The Bar strongly agrees with the proposition that this topic is one of great practical importance.
Not only do the applicable principles have a great impact on day-to-day sentencing; more
importantly, the reduction in sentence for a guilty plea is overwhelmingly the most significant
factor in persuading guilty defendants to plead guilty and avoid the necessity for a trial.

The Panel‟s support for structure and transparency in sentence reduction is welcome. In our
experience, the reduction in sentence for a guilty plea is unevenly applied by judges. Too often, a
large reduction in sentence is given for a plea of guilty on the day of trial. This is particularly so in
complex cases where the plea of guilty avoids the need for a long and inconvenient trial.
Defendants have little way of knowing whether an early plea of guilty is better than a late plea of
guilty.

Sir Robin Auld‟s proposal of a system of advance indication of sentence is also to be welcomed.
Although apparently beyond the remit of the Consultation Paper, we strongly believe that such a
system complements the Panel‟s preference for openness and clarity and ought to be integral to
any reforms. This issue is dealt with more fully below.

No better incentive can exist for a guilty defendant to plead guilty than the knowledge that his plea
will make a real and measurable difference to his sentence.


Response to 10 numbered Questions

1. We agree that the primary purpose of the reduction in sentence for a guilty plea is to benefit the
criminal justice system as a whole by: reducing the number of trials and freeing up the courts to
deal with contested matters; sparing victims and witnesses from testifying; bringing speedy justice
to victims and their families; saving resources. The integrity of the criminal justice system is also
enhanced by the recording of guilty verdicts against persons who are certainly guilty. Remorse
may, but need not, be evidenced by a plea of guilty. If a statement of purpose is required, we
suggest it should make clear that a plea should „not necessarily‟ (rather than „not routinely‟,
paragraph 10) be regarded as evidence of the offender‟s remorse. Remorse should be separately
considered as a distinct personal mitigating factor.

2. Courts are well able to decide what the level of sentence would have been
without the reduction for a plea of guilty. Precisely how the court should take
account of the relevant factors may be difficult to state: for example, whether the
court should apply the discount and then take account of personal mitigation, or
the other way round. That said, we understand the correct approach to be to apply
the discount for plea of guilty before taking account of other mitigation1. In any
event, courts should be able to state what the sentence would have been but for the
plea of guilty.




1
To do otherwise would result in giving smaller discounts to defendants with powerful personal
  mitigation since the percentage discount would be applied to a lower starting figure. We do not
  agree that the Magistrates' Sentencing Guidelines reflect the correct approach to sentencing.

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3. In the interests of clarity, a judge should indicate what the sentence would have been without the
reduction: the defendant sees that his plea has made a difference (and, if relevant, the Court of
Appeal); defendants in general and their advisers will become familiar with the importance of
pleas of guilty; the difference between credit for early and late pleas will become more apparent.

On the other hand, the benefit of a defendant understanding the impact of a guilty plea discount is
much greater at an earlier stage. If a guilty defendant at arraignment appreciates the actual
difference in sentence between early plea and conviction after trial, he is better able to make an
informed decision as to the risks of taking his case to trial. We therefore strongly support the
system of advanced indication of sentence proposed by Sir Robin Auld. Whether consideration is
being given elsewhere to the introduction of a Practice Direction or not 2, we believe that advanced
indication of sentence clearly strengthens and supports the objectives of the proposed sentencing
guidelines; and that the Sentencing Advisory Panel should itself consider how a system of
advanced indication of sentence would fit in with the sentencing guidelines.

4. It follows from the system based reasons for a plea of guilty that the greater the benefit to the
system, the greater the reduction in sentence. A proportionate reduction therefore seems necessary.
The longer the anticipated sentence, the greater incentive is needed for a defendant to plead guilty;
and it is likely that for the type of case attracting long sentences the savings for witnesses, victims
and the public will be greater where a defendant pleads guilty. It seems likely to us that if a
maximum reduction was fixed, for example a reduction of 2 years even for the longest sentences,
then in such cases there would be very little or in reality no incentive for guilty defendants to plead
guilty; moreover the average length of sentences would rise with the inevitable knock-on effect for
the prison population.

5. The level of reduction can and should be clearer. If defendants and their advisers are unable to
discern a clear pattern in the change in sentence reduction, reflecting the stage at which a plea is
entered , there is little incentive for a defendant to plead at the earliest opportunity. On the other
hand, the benefits to the system of a plea of guilty, even when entered shortly before or even on
the day of trial, are such that an incentive to plead guilty should be evident even at the latest
stages.

We agree that it would be helpful to identify the stages at which the differing levels of reduction
apply. A useful approach may be to base the reduction for a plea of guilty after the case is set
down for trial as a fraction of what the reduction would have been for a plea at the earliest
reasonable opportunity, and likewise with a plea on the day of trial. For example, it might be that
the credit for a plea “at the door of the court” should never be more than one half of the credit for
a plea at the earliest reasonable opportunity. Such a clear distinction would be readily explicable to
defendants.

We see no reason to depart from the levels of reduction which are applied for pleas of guilty at the
earliest opportunity. As stated above, there should always remain some credit for a plea of guilty,
however late.

6. We agree with the Panel‟s approach to the meaning of “at the first reasonable
opportunity”. The alternative, based upon the extent of service of the prosecution
case, is an invitation to defendants to spin cases out secure in the knowledge that
they will get maximum credit until the last „i‟ has been dotted in the prosecution
case. It seems to us that the logic of Barber ought to be applied to indictable-only offences,
and accordingly a discount greater than one third ought to be available to those who plead guilty at
the equivalent stage in the proceedings, namely on first appearance in the Crown Court.



2
Footnote 4, Consultation Paper.

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A difficulty not addressed in the consultation paper is where the defendant,
(1) makes an application to dismiss;
(2) makes a submission of no case to answer;
(3) raises a plea in bar.
It might be argued that since the defendant ought not to be arraigned before the determination of
this type of preliminary issue, he ought to receive the full reduction if the issue is determined
against him and he then pleads guilty. In our experience, however, judges are able to, and should
be able to, give an appropriate discount after such legal argument, taking into account factors such
as whether the foundation for the argument was purely legal and whether, if a mixture of fact and
law, the argument had any merit. In cases without merit, judges may be fully entitled to decide that
the reduction for a plea entered on arraignment should be less than otherwise.


7. A reduction should, as the Panel suggest, be available to a defendant even where the evidence is
overwhelming. A patently guilty defendant may face the same temptations as any other guilty
defendant: to let the case run and see what comes up, for example in the hope that witnesses will
not attend trial. There is always the chance of an unmeritorious acquittal. The system benefits of
an early plea by such a defendant are the same as in any other case.

We do not consider that where a sentence is made longer than commensurate for public protection,
the calculation of the length of sentence necessary to achieve that aim means that the ordinary
process of rewarding a defendant for a plea of guilty ought to be disregarded. There is no reason
why a plea of guilty itself should not afford a discount (which will be stated in open court), albeit
the part of the sentence provided for public protection may ultimately have the effect of either
reducing or wholly cancelling out the benefit of that discount.

8. In addition to the examples given in the question, a plea of guilty might in a proper case result in
a fine where a Community Punishment Order would otherwise have been appropriate.

9. We disagree that the effect of the reduction should be restricted to custodial and financial
penalties. We see no reason why in theory the number of hours of a Community Punishment Order
should not be reduced to reflect a plea of guilty where the court would be minded to impose such
an order following a trial. There is plainly a distinction between sentences that are wholly or partly
punitive and those that are wholly rehabilitative.

10. Since the system benefits noted above apply equally to proceedings in the youth courts as in
the adult courts, and since it is not suggested that the approach should be different as between
adults and juveniles who happen to appear in the Crown Court, we suggest that the approach to
reductions should be the same for adult and for youth courts. Young offenders should be rewarded
as clearly as possible for pleading guilty at the earliest opportunity, taking into account the range
and variety of sentences available to them.

In addition, we see no good reason why the system based reasons for a reduction in sentence on
plea of guilty should not result in reductions to the punitive or tariff portion of a discretionary,
automatic or mandatory life sentence. In such cases the system benefits of a guilty plea may be
particularly high; and in our experience a guilty defendant faced with the prospect of such a
sentence is more likely to fight the case.



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                                                                                   3        February 2003

                                                                                  David Spens QC
                                                                                      Nick Wood


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         Patrick Gibbs
         Jonathan Hall
         Martin Secrett




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