Picture this. It’s a Monday morning in February 2017, you have been sent to a magistrate’s court to represent an overnight in custody. Your client is a Polish labourer of good character arrested the previous Friday outside a pub following an altercation and subsequently charged with unlawful wounding contrary to S20 OAPA 1861. Eventually the IDPC is served and of course it consists of no more than a MG5, that’s the prosecution case summary for those not in the know. A Polish interpreter is required but the police have not bothered to book one and you have to wait until after lunch for one to show who may or may not have experience of court interpreting.
Your client has been in police custody for 3 days, he is tired, perhaps emotional and yes he is frightened as to what his immediate future holds. During your consultation you are obliged to inform your client who we shall call Jerzy that due to the recently introduced Guilty Plea Guideline, he will receive a one third reduction on sentence but only if he pleads today because he is charged with an offence which is triable either way. He may or may not have acted in self defence having been attacked first by the other party. It is difficult to fully advise as his memory is hazy and you are in an inadequately equipped consultation room in the cells. There is CCTV of the incident which may show definitively if he acted in self defence but this of course will not be served for some time.
You explain to Jerzy hat this is likely to be regarded as a Category 2 offence as it appears this is a case involving lesser harm and higher culpability. If he doesn’t plead guilty today then the maximum reduction in sentence falls to 20% and only if he pleads at the PTPH in 4 weeks. It is not possible to have a sensible discussion with the prosecutor as to a basis of plea because she is an agent.
Your client has a young family in Poland and he doesn’t want to spend a day longer in prison than necessary. He is frightened by the loss of the sentence discount. Hence he instructs you that he wishes to plead guilty even though the Crown has not served any ‘evidence’. He pleads guilty and is committed to the Crown Court for sentence. You apply for legal aid but it is refused as his basic wage is over £22,325 and besides he is unable to provide any documentary evidence. The magistrate’s court means test applies of course to cases which are committed for sentence.
You are unable to act pro-bono and he is unable to provide private funding. In the Crown court he appears unrepresented. The Crown though has now obtained medical evidence which suggests the complainant’s injuries are worse than originally anticipated. Potentially he may now be sentenced without representation to a lengthy term of imprisonment.
Does all this sound far fetched? Regrettably it isn’t because this is exactly the sort of scenario which will be commonplace if the Sentencing Council implements the guideline which is set out in their current consultation entitled ‘Reduction in Sentence for a Guilty Plea Guideline’ which closes on 5th May. The consultation can be found by clicking on the following link https://www.sentencingcouncil.org.uk/wp-content/uploads/Reduction-in-sentence-for-a-guilty-plea-consultation-paper-web.pdf
You should also consider the position with summary offences. According to the proposed guideline the reduction of one third applies up to the first appearance and 20% applies for 14 days thereafter. Of course you won’t receive the actual evidence until the day before the trial if at all!
What about those cases where your client has been on bail for 18 months, 2 years while the police investigation proceeds at a snails pace followed by the CPS waiting several months to assign a reviewing lawyer after the file is sent to them. How can it be fair and equitable for the defence to have to advise on such important decisions on the day of the first hearing with the meanest and most inadequate disclosure?
I’m sorry this Tuesday Truth has not been a barrel of laughs because these proposals are at best scary and at worst downright dangerous. At least I suspect this is one issue on which there will be absolute unity with the Bar. It is actually all rather ironic after all the fuss about plea only advocates that defendants will now be encouraged to enter guilty pleas at the magistrates court on very serious matters while being represented by solicitors or perhaps a pupil barrister.
The LCCSA will be arranging a presentation and discussion on these proposals by the Sentencing Council at Hodge Jones and Allen on the 18th April, details to follow. Meanwhile, I would implore all of you to read this consultation paper and respond.
Lewis Nedas and LCCSA Law Reform Officer