New guidelines on sentence reductions for early guilty pleas could make criminal defence solicitors liable for negligence, the Law Society has warned.
The Sentencing Council says it wants to ensure that a reduction in sentences for guilty pleas ‘should be applied fairly and consistently, and that the guidelines should encourage defendants who are guilty to plead guilty as early in the court process as possible’.
It says that early guilty pleas benefit victims and witnesses as well as the Crown Prosecution Service, Legal Aid Agency and HM Courts & Tribunals Service.
However in response to a consultation on the guidelines, the Society says that solicitors will need to act cautiously when advising clients to plead guilty on the basis of inadequate and late prosecution details.
Solicitors giving advice on plea will have to be careful ‘as to the circumstances creating a putative retainer’, as they would be ‘potentially liable in negligence’ if inadequate advice is given.
It adds: ‘In a case where the decisive evidence is not served, or is summarised by an agent of the opposing side in an adversarial system, it would be prima facie negligent (and potentially reckless) to offer advice in such circumstances.'
Guilty pleas entered at pre-trial preparation hearings could also ‘financially disadvantage’ defence solicitors and advocates, the Society warns.
‘[Although] a great deal of evidence may have been provided digitally and must therefore be considered, because this evidence has not been “served” for the purposes of a potential trial, no page-count is generated and the litigator and advocate cannot claim, nor be paid, the page-count proxy that would otherwise apply,’ the response states.
The Society recommends that commitals and sentence in the Crown court attract the same litigator’s fee as a guilty plea.