I’m going to leave the country.
Just when I thought there was going to be a respite from whatever madness the criminal justice system could coin this week (by embarking on the Two Fingers To 50 Tour, of which more later), my escape plans have been foiled. The Sentencing Council have been at it again.
The Sentencing Council, for those of you not in the know, is not (as it perhaps sounds) a group of 17th century Puritans with a thirst for blood and revenge who gather together every Michaelmas in an underground bunker to assess whether a suspected witch should face the ducking stool or be burned at the stake. Though the way they go on, some might say they may as well be.
No, this Sentencing Council is a body described as “promoting greater consistency in sentencing, whilst maintaining the independence of the judiciary”. It goes on to say, somewhat oxymoronically, that “the primary role of the Council is to issue guidelines on sentencing which the court must follow unless it is in the interests of justice not to do so“. Which some might say goes a considerable distance to not just fettering but strangling the independence of the judiciary when it comes to sentencing. I couldn’t possibly comment.
So who gets to be a member of the Sentencing Council? I wondered this when I read about their latest loudly trumpeted edict earlier in the week: the consultation on reduction in sentence for a guilty plea (see the link to the consultation here). The current members of the Sentencing Council look, gulp, pretty eminent. There’s the current Lord Chief Justice, the current DPP, a couple of pretty senior Crown Court judges, a Lord and a Lady Justice, a senior bod from probation (or what’s left of it after the MOJ dismantled it last year) and a Chief Constable, among others. The sort of people who’d enjoy chewing you up and spitting you out if you appeared in front of them. So how is that this consultation is, well, a little bit bobbins?
Maybe I’m being thick, but ever since I’ve been a barrister Defendants have received a reduction in sentence if they plead guilty. For most of that time, for Crown Court cases it’s been pretty much ‘one third off if you plead guilty at the preliminary hearing, a quarter off if you plead guilty at the PCMH, then diminishing rapidly towards the day of trial, where if you plead guilty on the day of trial you’d get a maximum of 10% discount’. Everyone – lawyers and Defendants – knew where they stood.
So when news stories appeared this week reporting the contents of the consultation (such as the BBC story here), there was initially surprise amongst us criminal lawyers: the headlines seemed to suggest that Defendants who pleaded guilty at an early stage would get a one-third discount off their sentences. Surely that’s already happening anyway? In which case, what’s the point of the ‘consultation’?
But read more closely and you see where the real news story is. It’s not the case that any Defendant pleading guilty at, say, the magistrates’ court will now get a bigger discount than they would have done previously. No, the real story here is the vastly diminishing discounts for those who plead guilty at a later stage, having initially pleaded not guilty. Those pleading at the new PTPH hearings (which doesn’t actually stand for Pressure To Plead Hearings, much as that seems the appropriate translation) will now apparently only receive a maximum of 20% discount, down from the current ‘rate’ of maximum 25%.
Apparently, the SC stated in the press release accompanying news of the ‘consultation’ that the new guidelines provided a “much tighter framework” and “much less scope for offenders to ‘play the system’ and still receive the maximum discount”. There are several things wrong with that statement, not least that it gives the appearance of the ‘consultation’ already being a done deal, no matter what responses might be received from interested parties who might actually have to work to this system.
The first point is that it can’t be a coincidence that this ‘consultation’ comes hot on the heels of the introduction nationwide of the Better Case Management system – the supposed ‘digital working revolution’ which is meant to streamline proceedings in both magistrates’ and Crown courts and has, anecdotally, led to some farcical scenes in courts up and down the country due to equipment failures, judges/counsel/court staff not being able to operate the case gateway, wifi dropping out at crucial times, etc.
One fact which is obvious to those of us working in the Crown courts is that the system appears to have given the CPS carte blanche to only serve a fraction of the case papers (and no unused materials) by the time the case reaches PTPH stage, which is now supposed to be the first hearing in the Crown court. But here’s the rub: under the latest Sentencing Council edict, the PTPH will be the stage at which any discount for pleading guilty will start its dramatic downward slide.
If you’re charged with an indictable only offence, the most serious offences there are, you’d better be ready to plead guilty and get weighed off that day, otherwise the reductions in credit start there. No matter that your lawyer hasn’t been able to access the papers on the digital system, or that the CPS have arbitrarily decided (because it’s they who get to decide what’s required) that all they need to disclose at this stage is a case summary – written by the police officer investigating the allegations, not by a lawyer, and in my experience almost invariably (a) biased, (b) inadequate, (c) inaccurate and (d) NOT EVIDENCE – and a couple of statements which don’t include the crucial ones from, say, the complainant or other key witnesses.
If you’re facing an either way matter, on which the magistrates can take a plea (and will put pressure on your client to enter one), very often you will be given a copy of the case summary AND NOTHING ELSE. And be expected to advise your client on the basis of that. IT’S NOT EVIDENCE!
The all too frequent battle cry of too many judges across the country these days is, “Well, your client knows if he/she is guilty.” There are two problems with that approach.
Firstly, very often the client may not know if they are guilty or not. Many offences have complicated technical elements, all of which have to be proved before you’re guilty of that offence. Would you know straight away if you or a friend or relative were guilty of a s18 causing grievous bodily harm with intent if charged with it? What if you were defending yourself? Would you know if the level of force you used to do so was reasonable? What if you had struck out first in anticipation of being attacked? Would you know whether you were allowed to do that or if that offered you a valid defence? Would you be aware of the legal definition of what constitutes grievous bodily harm?
It’s not so easy, is it?
Secondly, the client may know if they’re guilty. But unless they tell their solicitor or barrister that they’re guilty, their lawyer probably won’t.
And that’s a problem, because we have an obligation to advise the client on the strength of the evidence against them, in order to assist them before they enter a plea – especially important now that the Sentencing Council have stuck their oar in and are by their own admission seeking to ‘encourage’ more early guilty pleas. In the brave new world of the digital case management systems, where all you’ve potentially got to go on is a case summary written by a plod with an angle when you’re expected to advise on what could be extremely serious matters, are lawyers going to be able to properly discharge their professional duties? In many cases, I suspect not.
Actually, there’s another one. Thirdly: somewhere down the line, the powers that be seem to have forgotten that it’s for the Prosecution to prove their case. Which ought to mean an obligation to serve all the evidence on which the decision to charge was based, before expecting people to plead guilty. Or has the burden of proof been swapped to the Defendant without me noticing? (In the current climate, I suppose anything’s possible…) Apart from anything else, it feels fundamentally unfair.
I’d be interested to know exactly when the members of the Sentencing Council last had to advise a client in a criminal case. Several of them have plainly never done so, the rest I suspect some time ago. Clearly, this issue has never occurred to them.
And in times when lawyers can be sued for giving negligent advice, I know what many people will be saying to their clients: “I have insufficient information to be able to advise you fully and therefore, unless you insist on pleading guilty, my advice would have to be to plead not guilty at this stage, though you must understand that if you subsequently change your plea your credit for that plea will be diminished blah blah blah…”
And what will be the likely result? My betting is more people will plead not guilty than ever. If the situation feels like it’s unfair, people will dig their heels in until the scales are balanced. Show me the evidence. And of course, that’s exactly the opposite of the situation the Sentencing Council wanted to create.
So, I’ve officially Left The Country.
(For more on the Two Fingers To 50 Tour, I hope you’ll keep reading this blog…)