1.1 The guideline aims to encourage offenders who are going to plead guilty to do so as early in the court process as possible. This will mean that cases will be dealt with more quickly. Consequently more victims and witnesses will be spared the stress of worrying about a trial from an earlier stage in the proceedings and the police, prosecutors and courts will be able to focus on other cases.
1.2 The guideline provides this incentive by maintaining the current level of reduction for those who plead at the first stage of court proceedings but after that giving a lower reduction compared to that available currently. In summary:
a) The point at which an offender can benefit from the maximum (one third) reduction will be much more tightly defined–in essence under the draft guideline an offender must plead guilty the first time they are asked for their plea in court to qualify for the maximum reduction.
b) For offenders who plead guilty after that first stage the maximum reduction they can be given will be one-fifth compared to one-quarter under the current guideline.
c) Offenders who plead later will serve longer sentences than those who accept their guilt and plead at an early stage.
1.3 The proposals provide for some specific exceptions to the general rules to cater for situations such as where a defendant does not have sufficient information to know whether or not he is guilty of a particular offence or where the offence originally charged has changed.
1.4 Because the proposed guideline is stricter than the existing guideline, unless offenders are incentivised to plead at the earliest stage they may go to prison for longer and this would have an impact on the prison population.
1.5 A more detailed explanation of the differences is provided at Annex A.
2.1 The Council is required by law to produce a guideline on reductions for guilty pleas. Section 120(3)(a) the Coroners and Justice Act 2009 states:
The Council must prepare—
(a) sentencing guidelines about the discharge of a court’s duty under section 144 of the Criminal Justice Act 2003 (reduction in sentences for guilty pleas).
2.2 Section 144 of the Criminal Justice Act 2003 states:
(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that court or another court, a court must take into account:
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which this indication was given.
2.3 There is a current definitive guideline issued by the Council’s predecessor body, the Sentencing Guidelines Council (SGC) in 2007. Courts are required to follow the SGC guideline and the Court of Appeal has handed down judgments giving further guidance on how the guideline should be applied.
2.4 The Council collected data on the timings and levels of guilty pleas using the Crown Court Sentencing Survey, which ran from 1 October 2010 to 31 March 2015. This data, taken together with case law and research carried out with sentencers on the application of the SGC guideline, suggests that the SGC guideline is not always applied consistently and that levels of reductions in some cases appear to be higher than those recommended by the guideline.
2.5 This risks undermining the work being done across the criminal justice system to improve efficiency.
3.1 The Council recognises that the guilty plea guideline will operate in the context of the wider criminal justice system and that there are many factors that may influence the decision whether and when to plead guilty.
3.2 The Transforming Summary Justice (TSJ) programme, the Better Case Management (BCM) initiative and the recommendations in the President of the Queen’s Bench Division’s Review of Efficiency in Criminal Proceedings which have been incorporated into the Criminal Procedure Rules, place a requirement on all parties to engage early, make the right decisions, identify the issues for the court to resolve and provide sufficient material to facilitate that process.
3.3 The guideline is designed to complement this work and help to promote a more efficient system for the benefit of all those who come into contact with it especially victims and witnesses.
4.1 The Council is clear that the guideline is directed only at defendants wishing to enter a guilty plea and nothing in the guideline should create pressure on defendants to plead guilty. Defendants have a clear right to require the state to prove the case against them to a criminal standard.
4.2 It is a fundamental principle of our legal system that a person accused of a criminal offence is presumed to be innocent and an accused person has the clear right to require the prosecution to prove the case against them. In this respect the proposals do not represent a change from the existing guideline
5.1 Unlike the current guideline, the proposed guideline states that the reduction for guilty plea should be applied regardless of the strength of the prosecution case.
5.2 The benefits that can be gained from a guilty plea still apply in cases where the prosecution evidence is overwhelming. If a defendant in such a case pleads guilty, witnesses and victims will still be spared anxiety and uncertainty about whether they will required to attend court and give evidence, and the resources of the justice system will still be saved the time and expense of preparing for a trial.
5.3 In order for the proposed guideline to work effectively, the Crown Prosecution Service (CPS) will need to review cases at an early stage and identify those cases where an early plea is expected. Such cases where the police and CPS have identified that the evidence is strong and a guilty plea is likely are those in which the guideline aims to encourage a plea at the first stage of proceedings. An important incentive to plead at that early stage is the certainty of receiving the maximum reduction for a guilty plea. By removing the chance that the reduction might be withheld, the draft guideline will provide defendants and those advising them with certainty regarding the reduction and will provide the greatest possible incentive to plead early.
6.1 Information on the percentage of offenders who plead guilty is only available for the Crown Court. Of the 86,297 offenders sentenced in the Crown Court in 2014, 77,289 (90 per cent) pleaded guilty and 9,008 were found guilty after a trial. Of the 90 per cent sentenced in the Crown Court who pleaded guilty, 72 per cent pleaded guilty at what was adjudged to be the ‘first reasonable opportunity.’
6.2 Information on the levels of reduction given to offenders is only available for the Crown Court. The detailed information is complex but for example of those offenders sentenced in 2014 in the Crown Court for either-way offences (offences that can be dealt with in the Crown Court or magistrates’ court–for example theft, fraud or supplying drugs): 61 per cent received a reduction of one third; 19 per cent received a reduction of one quarter; and 10 per cent received a reduction of one tenth. The remaining 10 per cent were convicted after a trial and received no reduction.
6.3 There are differences across offence types, with the rate of guilty pleas amongst those convicted of indictable sexual offences at the Crown Court at 61 per cent, which is considerably lower than the overall rate for indictable offences (89 per cent).
6.4 Under the proposed guideline fewer offenders would receive the one-third reduction unless they enter their plea earlier. This is because the proposed guideline replaces the concept of the ‘first reasonable opportunity’ with more tightly defined stages of the court process.
7.1 At the time of writing (19 April 2016) the consultation is still open and the Council has not yet considered any responses. Officials have held a number of meetings with interested parties and some concerns have been raised about the proposals. Concerns have also been raised in some of the responses seen so far.
7.2 The issues that have been raised so far include the following:
a)from the perspective of many defence representatives, the proposals (including the exceptions) are too tightly drawn and will require defendants to enter a plea on insufficient information and with insufficient time to get advice. Vulnerable defendants may feel pressured to plead and lawyers may be conflicted as to how best to advise clients. This applies particularly to either way offences where a plea must be entered at the magistrates’ court in order to obtain the maximum reduction;
b)some judges also feel that the proposal to limit the reduction of one third in either way cases to defendants who plead guilty in the magistrates’ court is too inflexible. They consider that in some cases a defendant may receive only perfunctory advice at the magistrates’ court;
c)from the perspective of some prosecutors and some judges the proposals do not go far enough and an indication of plea should be given in the magistrates’ court to indictable only offences to qualify for the one-third reduction;
d)from the perspective of most professional respondents the clear distinction between matters which go to mitigation (such as remorse and pre court admissions) and the reduction for a guilty plea is welcomed;
e)from the perspective of some police, a defendant should have to make admissions at the police station to qualify for the maximum discount and some suggest a higher maximum for those that do so;
f)from the perspective of some prosecutors a higher maximum reduction would give more incentive to plead and could help to ‘crack’ long and complex cases;
g)from the perspective of NGOs concerned with fair trials and offender rehabilitation limiting the maximum reduction to one third is welcome as a higher reduction could result in defendants feeling under pressure to plead;
h)from the perspective of some (but by no means all) judges the removal of the ‘overwhelming evidence exception’ removes an important aspect of judicial discretion and could result in unfairness;
i)from the perspective of most defence and prosecution representatives and some judges the removal of the ‘overwhelming evidence exception’ is fair and welcome;
j)most professional respondents have welcomed the clarity of the proposed guideline and acknowledge the benefits that arise from a guideline that offers certainty, albeit that some feel that the certainty has been achieved at the expense of flexibility and fairness.
8.1 The Council will discuss the responses to the consultation (including the response from the JSC) at its meetings in June, July and September with a view to publishing the definitive guideline in November 2016. However, this timetable may change if the Council considers that more time is needed to refine the proposals or to ensure that other reforms to the criminal justice system are in place and working well enough for the guideline to operate effectively.
Office of the Sentencing Council
10 June 2016