Could the guilty plea write out the role of the defence?

The Sentencing Council is consulting on updating the guideline for reducing sentences for guilty pleas. The council's draft guideline identifies the benefit that comes from defendants admitting their guilt. It seeks to maximise those benefits by encouraging the guilty to enter their guilty pleas early. By making a clear distinction between the reduction in sentence available at the early and later stages of the proceedings, the guilty are incentivised to admit their wrongdoing.

While it is proposed that the maximum reduction for a guilty plea remains set at one-third, out goes the possibility of that credit being compromised in the face of overwhelming evidence or by the defendant's lack of pre-court cooperation. Any relief defence practitioners may feel at this will be dampened by the tempering of judicial discretion and the drop in possible reductions for later guilty pleas.

The draft guidelines seek to prescribe exactly when that maximum one-third credit can be given. It would be at the first hearing at the magistrates' court for summary-only matters, up to and including the allocation hearing for either-way cases, and the first hearing at the Crown Court for indictable-only matters.

For pleas entered after this time, the maximum credit reduces to one-fifth (down from a quarter) with the circumstances in which even this can be given clearly defined. For offences dealt with in the magistrates' court, the guilty plea must be entered up to 14 days after the first hearing; for either-way offences sent to the Crown Court for trial the guilty plea must be entered by the first hearing there; and for indictable-only offences not more than 28 days after the prosecutor states it has complied with section 3 of the Criminal Procedures and Investigations Act 1996.

Defendants waiting beyond these dates will still be able to get a one-tenth reduction on their sentence if the plea is entered on the first day of trial. However, the draft guidelines allow for a reduction below this - even no credit at all - once the trial starts.Suffer the consequences

It is suggested there should be exceptions to these strict rules, but they are very tightly defined. Defendants seeking to delay their guilty pleas until they have assessed the strength of the evidence are viewed as 'playing the system'. The tone here is that defendants who know they are guilty should plead guilty. If they wait to assess all the evidence, they will suffer the consequences.

This draft guideline imagines a world where the initial details of the prosecution case (IDPC) will be served by the first hearing in the magistrates' court at the latest, and this will be sufficient for the defendant to know if they have committed the offence.

Hollow protection

Defence practitioners will fear this is a hollow protection. The IDPC - particularly in those cases considered less serious - is likely to be scant. It will be rare indeed to find CCTV, medical, or forensic evidence served at the first hearing. Often, there will be no statements at all, only a simple summary prepared by police.

This is concerning because many defendants do not simply 'know their guilt' (as expressed in the draft). Take, for example, charges of offences against the person where the medical evidence dictates the assessment of the level of assault. If a defendant does not have sight of the same material used by the Crown in forming their view of the offence, they cannot judge if they are guilty of the specific matter alleged. And for evidence not served at the first hearing, defendants must wait long past the next 'credit-drop deadline' for its service. There will also be concern about those unrepresented at the early hearings - a frequent occurrence with the limited means test in the magistrates' court and delays in legal aid processing. There is no suggestion that lack of legal advice can be taken into account as a reason not to reduce credit. Indeed, the draft proposals seek to increasingly write out the role and value of a defence solicitor in assessing the evidence.

The proposed guidelines note that a defendant has the right to 'put the prosecution to proof'. True: defendants can still see if the prosecution can prove their case and be advised on the strength of the evidence before entering a guilty plea. But there will be serious consequences for those that do. 

The reduction in sentence for a guilty plea guideline consultation closes on 5 May 2016.

Ruth Harris is a criminal defence partner at Hodge Jones & Allen @hodgejonesallen