The Sentencing Council on 11 February issued a Consultation on Reduction in Sentence for Guilty Pleas. The Consultation closes on 5 May 2016. This topic is already garnering media interest and there is likely to be further criticism similar to that expressed in the recent Daily Mail article: “Sentences could be slashed for early guilty plea even if overwhelming evidence” (11 February 2016) – so why should sentences be reduced for those who plead guilty to criminal offences? 

It is important to note that giving credit for a guilty plea is not a new principle.  It is enshrined in law that the Court must take into account the stage at which an individual pleads guilty when determining their sentence (section 144 Criminal Justice Act 2003).  The Court already makes a reduction in sentence if a guilty plea is entered and the proposed Guidelines only seek to clarify the application of this existing principle.

This proposed Guideline provides a more stringent and limited approach to the maximum reduction than is currently the case, limiting judicial discretion.  It is now proposed that defendants must admit their guilt on the first occasion that the charge is put to them in order to obtain a one third reduction in their sentence, the greatest possible reduction available. After this initial opportunity is missed the available reductions drop to 20% if a guilty plea is entered after a trial date is set, and then to 10% if it is entered on the first day of trial.  A reduction in sentence of 10% is unlikely to be much of an incentive to a defendant to plead guilty. 

The current Guideline gives a defendant some leeway to enter their guilty plea at the first opportunity, which may be at a later date than that now proposed. This more stringent approach is likely to result in lower reductions of sentence than would currently be received and therefore individuals spending longer in custody. With limited resources within the criminal justice system and issues of overcrowding and a lack of rehabilitation within the prison system this proposed Guideline may be guilty of exacerbating rather than assisting the problem.

The Consultation sets out a number of categories where it may be possible for the levels of sentence reductions above to be granted notwithstanding the failure of the defendant to enter a guilty plea at the specified time.  These will include cases where the defendant reasonably required further information, there has been a failure of the CPS to provide the initial disclosure, there is the need for a Newton or Special Measures hearings and in exceptional circumstances where cases would be long and complex if they had proceeded to trial.  It is anticipated in these circumstances that the defendant once in provision of the relevant information will notify a guilty plea within 14 days. 

The proposed Guidelines do, however, worryingly refer to the need for defendants to admit ‘what they have done’ and ‘not to play the system’.  This language seems to give short shrift to the rights and legitimate interests of defendants. The law is complex and it is not ‘playing the system’ for defendants to delay ‘admitting what they have done’ until they have received full advice about their legal position.  Proper funding for both the prosecutor and the defence is required to ensure that both parties have the information that they require and can engage appropriately in discussions about pleas. 

The justice system certainly has an interest in encouraging early guilty pleas.  The CPS and Court Service are saved the expense of preparing cases and proceeding to trial, while victims and witnesses are spared the experience of coming to Court.  It is therefore sensible that appropriate credit should be given when sentencing defendants who have entered an early guilty plea. 

It must, however, be remembered that the justice system in this country is an adversarial one: an individual is presumed innocent until proven guilty and it is for the Crown, who bring the proceedings, to prove their case. The defendant should be under no compulsion to prove that they did not commit a crime, nor should they be required to assist the prosecution to make their case. Any new Guideline must ensure that these vital principles are not compromised.