Life in crime | Degrees of separation

In Nightingale (13 March 2013, CA No 1206575 D5) the Court of Appeal recognised that there are circumstances in which a judge's 'uninvited indication' of the likely sentence can amount to inappropriate pressure on a defendant which can 'narrow his freedom of choice' such as to induce a guilty plea. If a sergeant in the SAS who was defended by an eminent QC can be susceptible to inappropriate judicial pressure, where does that leave the unrepresented defendant in an age of legal aid cutbacks?

Sgt Danny Nightingale (N) was a sniper in the SAS. In recognition of his work training Iraqi special forces he had been given a Glock 9mm pistol and some ammunition. He said he brought it back to the UK to keep as a souvenir. He had then forgotten about it. ?At his court martial he pleaded guilty to offences of possessing a prohibited firearm and ammunition.

At his arraignment, N's counsel (W) requested more time to consult with his client. An exchange took place between the judge advocate and the prosecution about the statutory minimum term of five years' imprisonment which attached to the offence. The judge advocate referred to N's housemate (X), who pleaded guilty and received two years' military detention on the basis of exceptional circumstances. In the course of that discussion, without any invitation by W, the judge advocate indicated that if N fought the charges he would be looking at a sentence close to the minimum statutory term of five years' imprisonment in a civilian prison whereas if he pleaded guilty he would receive no more than two years' detention, if not less, with the added advantage of serving his sentence in a military prison with the possibility of continuing his military service at the end. W quite properly conveyed that indication to his client, who then decided to plead guilty.

The Court of Appeal allowed the appeal. It said firstly that it was axiomatic that a defendant charged with a criminal offence was personally responsible for his plea and that he had to be free to choose whether to plead guilty or not: Turner [1970] 2 Q.B. 321 and Goodyear [2005] EWCA Crim 888, applied. That principle applied whether or not an advocate or judge thought the case was apparently unanswerable. That principle did not mean that a defendant had to be free from the circumstantial pressure which was inevitable in the making of that choice, and considering a sentence of imprisonment was often possible. An advocate had a duty to point out the possible advantages of tendering a guilty plea through forthright and realistic advice even if a defendant had indicated an intention to plead not guilty. That necessary forensic pressure did not deprive a defendant of his choice.
In contrast to the obligation on an advocate to offer advice, however, a judge had to remain outside that confidential process.

Secondly, the cases of Turner and Goodyear identified a specific exception to that rule where a judge was permitted to give a sentence indication to a defendant following a request from the defence. It was not inappropriate judicial pressure for a judge to respond to such a request. However, a judge could only go so far as to remind the defence of their entitlement to make such a request. Where no request was forthcoming it was wholly inappropriate for a judge to insist on giving an indication anyway.

Thirdly, one further exception enabled a judge to use his own initiative to give an indication that the type of sentence would remain the same regardless of whether a defendant pleaded guilty or not guilty. That allowed a defendant to make up his mind without the extraneous pressure of the impact that his decision could have on sentence. However, a judge was not permitted to give an uninvited indication that a long sentence was inevitable if a defendant fought the charge but would be relatively short if he pleaded guilty.

In the instant case, the judge advocate's uninvited indication had inappropriately narrowed N's freedom of choice. His guilty plea was set aside and a retrial ordered.

This case draws an important distinction between the advocate's duty to advise on the strength of the evidence and likely sentence and the judge's duty to remain aloof from that process. The advocate is there to protect his client and once an indication of sentence is given, a further conference is often held to decide whether to enter a plea or fight on.

Yet nowadays we are seeing all too often in the courts defendants who are not represented for want of legal aid.

Clearly judges should not be offering such defendants advice on the likely sentence if they plead guilty. But naturally such a defendant will want to know and will ask of the judge the question which should be for his lawyer. If he requests that information, the judge is entitled to give it (though may decline to do so). Wouldn't that equally be an inappropriate narrowing of the defendant's free choice?