LCCSA RESPONSE TO REDUCTION IN SENTENCE FOR A GUILTY PLEA GUIDELINE CONSULTATION

The objectives of the LCCSA are to encourage and maintain the highest standards of advocacy and practice in the criminal courts in and around London, to participate in discussions on developments in the criminal process, to represent and further the interest of the members on any matters which may affect solicitors who practice in the criminal courts and to improve, develop and maintain the education and knowledge of those actively concerned with the criminal courts including those who are in the course of their training. The London Criminal Courts Solicitors’ Association (LCCSA) represents the interests of specialist criminal lawyers in the London area.  Founded in 1948, it now has almost 750 members including lawyers in private practice, Crown prosecutors, freelance advocates and many honorary members who are circuit and district judges.
 
The LCCSA has decided to only respond to those questions which are pertinent and within the ambit of knowledge and concerns.
If you have any queries regarding this consultation please contact:
Emma Lipscombe – sunshine.emma@hotmail.co.uk
Leigh Webber – l.webber@gtstewart.co.uk
Tony Meisels – tmeisels@lewisnedas.co.uk
 
Question 1:
 

1. Is the rationale in the key principles section set out clearly?

 
Yes, it is an established principle and we are in agreement.
 
Do you agree:
 

1. With the stated purpose of operating a reduction for guilty plea scheme?

 
Yes
 

1. That the guideline does not erode the principle that it is for the prosecution to prove its case?

 
We believe it erodes the principle but in a subtle way in so far as it encourages the prosecution not to engage fully in disclosure to the defence before a plea is entered. We will return to the issues concerning disclosure below.
 

1. That factors such as admissions in the pre-court process should be taken into account as mitigating factors before the application of the reduction for guilty plea?

 
In current sentencing guidelines admissions do not feature as a mitigating factor.  We are of the opinion that consistency should be maintained throughout.
 
We maintain the view that admissions in the police station should not reduce the percentage of the plea as it could potentially undermine the legal advice given at the police station.
 
 
 
Question 2:
 

1. Do you agree with the approach taken in the draft guideline to overwhelming evidence i.e. that the reduction for a guilty plea should not be withheld in cases of overwhelming evidence?

 
Agree
 
If not:
 

1. Do you think that the alternative approach (of allowing the court discretion to apply a lower reduction after the first stage of the proceedings) is preferable?

 
 
N/A
Question 3:
 

1. Is the method of applying a reduction at the first stage of the proceedings set out clearly?

 
Yes
 
Do you agree:
 

1. With the capping the maximum reduction at one-third?

 
We take no issue with this proposal which is consistent with current guidelines and practice.
 

1. With restricting the point at which the one-third reduction for adults can be made to the first stage of the proceedings? And
   
2. With the definition of the first stage of the proceedings for adults and youths for each type of offence at D1?

 
We strongly disagree and will deal with these two questions together. With regard to ‘3.D’ we are of the view that for all either way cases and certainly for those where jurisdiction is declined, the first stage of proceedings is the PTPH in the crown court. The same applies for youth defendants sent or committed to the crown court for grave crimes.
 
Please give reasons if you do not agree.
 
 
Disclosure: The IDPC is frequently restricted to a MG5 and antecedents. This is prepared by the police officer in the case who is not legally qualified and may often deliberately or inadvertently draft the summary of the case with a bias. This is often inadequate for defence representatives to properly take instructions and advise a client as to the strength of the evidence against them. Even if statements are included in the IDPC they may not include those which are crucial for proving the Crown’s case. For instance they may not include the complainant’s statement in allegations of assault! Evidence which is not in document form such as CCTV is very rarely served as part of the IDPC even if there is no other evidence against the defendant. We also submit that it is similarly rare for unused material to be served as part of the IDPC and such material could be crucial to the defence case and very damaging of the Crown’s case.
 
Inadequate facilities in court buildings: Finding a consultation room is not easy and for own clients there are rarely more than 2-3 rooms available to advocates at most courts. For those who appear in custody there is a similar strain on space with many consultation rooms featuring thick glass partitions which hinder effective communication. In some courts there are time limits on how long a representative can spend with a defendant in custody. Consultations can sometimes be curtailed if the court has no work to get on with. This is a particular difficulty in Saturday courts when there is huge pressure to complete the list as quickly as possible. Often clients want to speak to there family and make a decision jointly as the outcome often has an effect on other family members.
 
Client’s ability to provide instructions: Those who appear in custody – and they may have been in police custody for up to 3 nights - are often very distraught and their primary concern is whether or not they will be granted bail. As such they may find it difficult to focus on providing coherent instructions. Sometimes they may wish to consult first with family members or loved ones which is impossible at that stage. Furthermore a sizeable of those appearing before the courts have mental health, drug or alcohol issues which further impede their ability to provide adequate instructions.
 
Duty solicitor: Those who are represented by the duty will not even have the advantage of having had any previous contact with his or her solicitor before the first hearing. With fewer people qualifying for legal aid due to means testing in the magistrates’ court, the duty solicitor has a heavier workload thereby reducing the amount of time which can be devoted to each case/client.
 
Legal aid/ funding: At the time of the first appearance legal aid may not be in place. Often it is only applied on the date of the first appearance and this applies to all overnight cases. The SC proposals envisage a much greater number of defendants being committed to the crown court on serious either way matters after entering a guilty plea at the magistrates’ court. On committals for sentence eligibility for legal aid is the same as for the magistrates’ court. In other words anyone with a gross income of over £22,320 will be ineligible for legal aid and many of those with an income of between £12,460 and £22,320 will likewise fail the means test. The outcome will be a huge increase of unrepresented defendants in the crown court often in custody and awaiting sentence for very serious offences.
 
Basis of plea/alternative charges: Not infrequently a defendant may wish to plead guilty but on a basis or instead plead to an alternative charge. It is all but impossible to address and agree a basis of plea or alternative charge in the magistrates’ court where the prosecutors are often unqualified associates without any authority to discuss such matters. The focus of the court is to process a high volume of cases as quickly as possible and hence a feasible discussion is out of the question.
 
Role: Following on from what we have said under basis of plea, the same can apply with regard to the defendant’s role in a crime whether it be leading, significant or lesser. This is particularly relevant to drugs, fraud and money laundering offences all of which are either way.
 
Holding charges: Sometimes in more serious and/or complex matters where the defendant is considered a flight risk they may appear on a holding charge while the investigation continues. It is unclear what would happen in such instances.
 
 
BCM: This has only just been rolled out since January 2016 and the impact of timely guilty pleas at the PTPH needs to be fully researched and considered. Anecdotal evidence suggests that disclosure is being properly addressed after the first hearing to ensure an effective PTPH and hence the entering of guilty pleas where appropriate. Previously guilty pleas were often not being entered until the PCMH some 3 months after a defendant’s first appearance in court.
 
Prison visits: At many establishments it can easily take 2+ weeks to obtain a prison visit. At certain prisons Belmarsh being the most notable, practitioners’ even struggle to arrange a visit within the 28 days between the first appearance and the PTPH further impeding the taking of comprehensive instructions upon which an informed decision can be made with regard to plea.
 
Impact on victims and witnesses: As set out on page 13 of the consultation paper, a key principle for reducing a sentence on a plea of guilty is that it saves victims and witnesses from having to testify. Furthermore, it reduces the impact of the crime upon victims. While we understand and to an extent concur with these principles the SC is completely overlooking what actually occurs in practice. Communication between the police/CPS and witnesses if patchy and at times virtually non-existent. It has not been explained how bringing forward a guilty plea by say 28 days in serious either way matters is going to have a positive impact on victims with whom there may have been no communication in any event and when if there was to have been a trial it would not have taken place for many months. We would also like to mention the often inordinate periods of time suspects remain on bail pending a charging decision. In one recent case of which one of the authors had conduct, a 13 year old boy was on police bail for over 18 months before he was charged with rape of a girl of a similar age by which time he had turned 15. Our argument is that these proposals are not even consistent with the key principles.
 
 
Question 4:
 
 

1. Is the method of determining the reduction after the first stage of the proceedings set out clearly?

 
Yes
 
Do you agree:
 

1. With restricting the reduction to one-fifth after the first stage of proceedings?

 
No we do not agree. We are concerned that this significantly reduces judicial discretion.  We do not see how this will work in practice and in our submission it will encourage more cases to go trial.
 
The English criminal justice system is predicated on an adversarial not an inquisitorial model and has developed as such over many hundreds of years. Defendants are entitled to see the evidence against them and we believe they should not be unfairly penalised for waiting for the evidence to be served.  Steeply reducing the discount for pleading guilty is potentially undermining justice and leaving no incentive to defendants to plead guilty.
 
The client is a layperson; there are times when they may have a defence of which they are not aware (self-defence in an allegation of ABH for instance) and if this is not considered fully by qualified lawyers it may lead to many miscarriages of justice.
 
 

1. With the definition of the point at which the one-fifth reduction can be given at D2?

 
We take issue with this as all too frequently we have not been served with the evidence especially in summary proceedings in the magistrate’s court.  It is often difficult and sometimes impossible to obtain a prison visit within the time frame proposed.  Funding – legal aid – is also an issue and therefore you would not have had time to see the client.
 
Primary disclosure is often purported to have been served but hasn’t.
 
 

1. With the sliding scale reduction (at D3) thereafter?

 
With regard to late pleas, we believe in retaining judicial discretion as it is very difficult to be prescriptive and may ultimately be counter-productive. In summary matters the reduction is unlikely to be very much where a custodial  sentence is  imposed.
 
 
 

1. With treating the trial as having started when pre-recording cross-examination has taken place?

 
Not necessarily so as pre-recorded xx may take place quite some time before the trial. This procedure is intended to ‘remove’ the complainant from the stress of the trial process. As such we believe it would be unfair for the defendant to receive as a result even less credit for a plea.
 
Please give reasons where you do not agree:
 
 
 Question 5:
 

1. Is the paragraph on imposing one type of sentence rather than another clear?

 
Yes
 
Do you agree:
 

1. That it may be appropriate to reflect a guilty plea by suspending a period of imprisonment?

 
We are concerned that if the guilty plea is reflected by a suspended sentence the length of the sentence and/or the requirements attached may be disproportionate. There should be scope for reflecting credit for a guilty plea by reducing the extent of the requirements or indeed the length of the sentence.
 

1. That when the guilty plea reduction is reflected in imposing a different (less severe) type of sentence that no further reduction should be made?

 
Please give reasons if you do not agree.
 
We are concerned that the credit may become unquantifiable. Please also see our answer above.
 
 
 
 
Question 6:
 

1. Is the guidance at paragraph E2 to E4 clear?

 
Yes
 

1. Do you agree with the guidance at E2 that there should be provision for a further reduction in cases where consecutive sentences (after guilty plea reduction) for summary offences total to the maximum of six months?

 
We are not opposed to this proposal which has regard to the principle of totality.
 

1. Are there any other jurisdictional issues that the guidance should address?

 
No.
 
Please give reasons where you do not agree.
 
 
Question 7:
 

1. Is the guidance at F1 clear?

 
 
Yes
 
Do you agree:
 
 

1. That the exception is a necessary safeguard?

 
No.  Please see our answer at question 3 C) and D).
 
We do not agree with the suggestion that the defendant can still admit his conduct  when disclosure has been inadequate.
 
 

1. That the right cases are captured by this exception?

 
Please give reasons where you do not agree.
We do not agree with the whole approach of the SC and already vulnerable clients and those suffering from mental health conditions will be placed at a disadvantage. Our view is that this guideline is unworkable.
 
 
 
Question 8:
 

1. Is the guidance at F2 clear?

 
Yes
 
Do you agree:
 

1. That the exception will ensure that defendants will know what the allegations are against them before required to enter a plea?

 
See answer to question 3 C) and D).
 
While the Crown and significant elements of the judiciary consider the MG5 to be adequate disclosure this is not the case for the vast majority of defence practitioners. As such we are frequently left in the position of not being able to advise a client properly.
 

1. That the exception should apply to either way or indictable only offences but not to summary offences?

 
Leaving aside our opposition to the whole approach by the SC in this consultation, we do not follow the logic of excluding summary offences from this exception. Not all summary offences are straightforward, many are viewed serious and attract custodial sentences and it is fundamentally unfair to expect parties to wait all day at court due to the inadequacies of the police and/or CPS lawyers (under legal aid, waiting time goes unpaid and fees have over the years been substantially reduced).
 
 

1. That 14 days is the appropriate extension?

 
Please give reasons where you do not agree.
 
No we do not find 14 days acceptable for the practical reasons already raised above vis a vis funding, prison visits and so on.
 
 
Question 9:
 

1. Is the guidance at F3 clear?

 
Yes
 
 
 
 
 

1. Do you agree with the proposed reduction in cases where an offender’s version of events is rejected at a Newton or special reasons hearing?

 
Please give reasons where you do not agree.
 
We agree that it is fair to lose 50% of the credit where the defendant’s version of events has been rejected after a newton or a special reasons hearing.
 
 
Question 10:
 
 

1. Is the guidance at F4 clear?

 
Yes
 
Do you agree:
 

1. That it is a necessary exception for the small number of cases to which it applies?

 
This is wrong in principle and is all about saving money. It also unfairly benefits middle class defendants who are more likely to find themselves before the courts on such matters.
 

1. That the exception is worded appropriately to capture the right cases?

 
Please give reasons where you do not agree.
 
As stated above we do not agree with this exception and hence
cannot comment on whether the wording captures the correct cases.
 
 
Question 11:
 
 

1. Is the guidance at F5 clear?

 
Yes
 

1. Do you agree with the proposed treatment of cases where an offender is convicted of a different or lesser offence?

 
Please give reasons where you do not agree.
 
This assumes that the defendant and the defence are from the outset pro-active and we have already drawn attention to the many problems faced by the defence including inadequate disclosure and the difficulties of taking full instructions at or before the first hearing. In the scenarios at F5, the defendant is pleading guilty to an offence with which he was not originally charged and we believe it would be unconscionable to deprive the defendant of full credit because for instance the Crown have taken a sensible view. It also makes matters too complicated and raises potential grounds of appeal.
 
 
Question 12:
 
 
Is the guidance at F6 to F8 accurate and clear?
 
The guideline must make it clear that the judiciary retain discretion even where a minimum sentence is prescribed by law to depart from that sentence. We also note that S28 of the Criminal Justice and Courts Act 2015 which introduced minimum tariffs for second strike knife possession has been omitted from this section.
 
 
Question 13:
 

1. Is the guidance in section G on reduction for a guilty plea in cases of murder clear?

 
Yes
 

1. Do you agree with the guidance in such cases?

 
Please give reasons if you do not agree.
 
We do not agree with the guidance and are of the view that setting a framework of reductions for guilty pleas is not practicable. Murder cases are by their very nature complex and evidence is often served piecemeal. A life sentence is mandatory and it is essential to retain judicial discretion in setting tariffs where there will be regard to any guilty plea entered.
 
 
Question 14:
 
 
Do you agree that Section G in the SGC guideline can be omitted from the new guideline?

We agree.
 
Please give reasons where you do not agree.
 
 
 
 
 
Question 15:
 
 

1. Are the flowcharts at appendices 1 to 6 clear?

 
Yes
 

1. Do you agree that it is helpful to include the flowcharts?

 
Yes
 

1. Is there any other explanatory material that it would be useful to include?

 
No
 
 
Question 16:
 
 

1. Are there any further ways in which you think victims can or should be considered?

 
No
 

1. Are there any equality or diversity matters that the council should consider? Please provide evidence of any issues where possible?
   

No