On 11 February 2016 the Sentencing Guidelines Council (SGC) published a draft guideline on the reduction in sentence available for guilty plea1. It has long been a principle of our criminal justice system that those who plead guilty should receive a shorter sentence than those who do not, with the biggest reduction reserved for those pleading guilty earlier in proceedings. The SGC however wishes to tweak this in a way which will potentially have a substantial impact on sentences for those pleading guilty.

The SGC reminds the reader that “defendants have a clear right to require the state to prove the case against them to a criminal standard”. In a country where the foundation of the criminal justice system is “innocent until proven guilty” this should come as no surprise. But for lawyers familiar with the day to day operation of the criminal justice system, there are some question marks over whether the detail of the draft guideline will in practice live up to these vital stated principles.

Presently, the maximum one-third reduction in sentence applies to offenders who entered their guilty plea at “the first reasonable opportunity”. Instead the draft guideline proposes that this maximum should only apply to pleas entered “at the first stage of the proceedings” which it defines as “the first point at which the charge is put to the offender”.  So in relation to an offence triable ‘either way’ i.e. one that can be tried in either the magistrates’ or the crown courts (e.g. fraud, sexual assault, or ABH), the one third discount would only be available to those who plead guilty at their first hearing in the magistrates court, rather than subsequently at the crown court. In addition, forall types of offence (including indictable only offences, where the first opportunity to enter plea will remain as the first crown court hearing) there is no longer a safeguard of “reasonableness” available to the judge when considering the timing of plea and the consequent reduction in sentence.

This change in when the full one third reduction in sentence is available should be of concern to defendants, particularly those facing charges of serious either-way matters (such as complex, high-value fraud). Whilst the SGC understandably wants to insert a greater incentive for early guilty pleas and thereby speedier and cheaper justice, the difficulty with this proposal is that it rests on an unjustified assumption concerning what stage the process has reached by the time of a first court hearing. Lawyers know that it is rare that the CPS is able to serve its case by that point. The “initial details of the prosecution case” that are served at the first appearance are often only a couple of pages summarising the allegation, and lawyers are often in no position to advise defendants on the strength of the case against them.

The SGC’s second major proposal is a steep drop in the sentence discount available, shortly after the first stage. If an offender does not plead guilty then the SGC advocates that their reduction should be cut to 20%. This curtailment will apply even if the CPS has not served its evidence, and the offender has no opportunity to be advised as to the prosecution’s case against them.

Mindful of these concerns the SGC also proposes a number of safeguards. Of particular relevance is the first one:

“F1: Where all three of the following apply:

1. At or before the first stage of the proceedings the offender – although he has not indicated a guilty plea – has identified to the court and/or the prosecutor the conduct which he admits; and

2. had insufficient information about the allegations to know whether he was guilty of the offence; and

3. it was necessary for him to receive advice and/or to see evidence in order for him to decide whether he should plead guilty;

a reduction of one-third should be made where the guilty plea is indicated immediately after he receives the advice and/or sees the evidence.

For the avoidance of doubt this exception does not apply where an offender has exercised his right not to admit what he knows he has done until he sees the strength of the evidence against him.”

This exception is a welcome recognition that in more complex cases it is not as simple as “knowing” whether or not you are guilty. Complicated financial crimes (for example) will often require a detailed understanding of the evidence from which the prosecution allege the defendant’s dishonesty should be inferred. Secondly, specialist advice may be needed as to whether what the defendant is willing to admit amounts to an offence.

However, this exception will not alleviate the situation of defendants in more straightforward cases, whose lawyers are not in a position to advise them on the strength of the evidence at the first stage in proceedings. Defendants will increasingly be placed in the unenviable position of feeling pressure to plead guilty without knowing whether the prosecution evidence is close to sufficient to prove them guilty. It is hard to see how this is not an erosion of the principle that the prosecution must prove its case, which the draft guideline claims to uphold.

F1 is only one of a number of proposed exceptions to the general scheme (initial details of the prosecution case served late, exceptionally complex and lengthy cases, an early offer of plea to a lesser charge etc.). These safeguards are welcome, although they, like F1, are very narrowly drafted. If these are all brought into force, the need for expert advice at an early stage of proceedings will be crucial. Defendants will need to be represented by someone who can foresee which exceptions might be available, to ensure any delay in entering a guilty plea, for good reason, does not deprive them of the reduction in sentence to which they should be entitled.

The aims of this draft guideline are laudable. Consistency in sentencing practice, and earlier certainty for victims of crime are important. However, it is equally as important that the rights of defendants, in particular the right to require the state to prove the case against them, are protected. The proposals in the draft guideline, and the narrow way in which the exceptions have been drafted, may have prioritised consistency at the expense of defendants. The rights that will be impacted by these proposed changes are a fundamental part of the principle that the prosecution bears the burden of proof, and their erosion is something that all criminal lawyers should be concerned about.

An amended version of this article has been published in The Law Society Gazette.