Unbalancing the burden of proof

On 11 February the Sentencing Guidelines Council (SGC) published a proposed guideline concerning sentence discounts offered in return for early guilty pleas. Its key proposal is a change regarding when the maximum one-third reduction for a guilty plea should be available.

The SGC recommends that this should only be ‘the first point at which the charge is put to the offender’. Reinforcing the SGC’s aim to encourage early guilty pleas, it also proposes a steep drop in the discount to 20% shortly after the first stage.

These proposals should concern defendants in the criminal courts, especially those charged with serious either-way offences likely to be tried in the Crown court. While the SGC understandably wants to insert a greater incentive for early guilty pleas, with a view to speedier and cheaper justice, its proposals rest on an unjustified assumption about the stage the process has reached by the time of a first court hearing.

Lawyers know it is rare that the Crown Prosecution Service has served adequate details of its case by then. Although the CPS will usually have formally complied with the requirement to serve ‘initial details of the prosecution case’ (IDPC) at the first hearing, this is often no more than a couple of pages summarising the allegation. Such meagre disclosure does not enable defence lawyers to advise defendants on the strength of the case against them.

Mindful of these concerns, the SGC also proposes a number of safeguards to ensure that defendants do not feel unwarranted pressure to plead guilty. These measures attempt to define when it would be unjust for a defendant who pleaded guilty late to be denied the one-third reduction in sentence. These are welcome and indicate that the SGC recognises the need for flexibility in some situations (for example, when the IDPC is served late, or where cases are too complex for a defendant to simply ‘know’ if they are guilty without specialist advice).

However, these proposed safeguards are narrowly drafted. It is easy to envisage cases where defendants who have delayed their plea for good reason will not be protected. The obvious situation is that of a defendant facing serious allegations triable either way and who is provided with limited IDPC at their first court hearing, but facing allegations straightforward enough that they cannot argue they need specialist advice before ‘knowing’ if they are guilty. If their lawyers are unable (because IDPC was never intended to enable them to do so) to advise on the strength of the evidence, this defendant will be placed in the unenviable position of feeling pressure to plead guilty without knowing whether the prosecution evidence is sufficient to prove them guilty.

As a matter of principle, it cannot be right for a defendant to be penalised with a longer sentence only because their lawyer has not been able to give sufficient advice on plea.

Defence lawyers will also be in an invidious position. Advising on plea is rarely straightforward and lawyers are already familiar with doing so without having seen every piece of evidence. At present, however, lawyers know that there is flexibility available to judges when deciding what reduction in sentence for guilty plea is appropriate. This is because the definition of the first opportunity to plead is expressed in terms of ‘reasonableness’. By contrast, the rigidity of the SGC’s proposals means that there is a danger of considered advice on plea being drowned out by warnings of serious, seemingly inevitable consequences for likely sentence if a guilty plea is not entered immediately.

The aims of this draft guideline are laudable. Consistency in sentencing practice and earlier certainty for victims of crime are important. However, the proposals have prioritised consistency at the expense of defendants. The rights that will be affected by these changes are fundamental to the principle that the prosecution bears the burden of proof, and their erosion is something that all criminal lawyers should be concerned about.

Maia Cohen-Lask is an employed barrister at Corker Binning, London