HM Courts & Tribunals Service appears to be attempting to defuse the row over criminal defence practitioners being asked to explain late guilty pleas by saying no one will be asked to breach professional privilege.
Practitioners were furious to learn last month that, in Thames Valley, they will be required to discuss, in open court, with a judge the reason for a late guilty plea, expressing concerns about client confidentiality and legal professional privilege. It is one of seven measures HMCTS wants to introduce after conducting a three-month data collection exercise of cases involving a guilty plea entered on the day of the trial.
Magistrates will be required to ensure the reason for a late guilty plea being entered on the day of trial is recorded accurately on the Cracked and Ineffective Trial Form. 'All parties will therefore be required to remain in court at the conclusion of the hearing to participate in a discussion (in open court) led by the presiding justice to ensure the reasons for the late change of plea are recorded,' an HMCTS document states.
However a spokesperson for HMCTS told the Gazette this week: 'There is no obligation for legal professionals to stay behind in court to explain the reason behind a late guilty plea and we would never ask them to breach client privilege.'
The spokesperson said late guilty pleas can have an impact on the final sentence and legal professionals would want to put any relevant reasons before the court.
HMCTS says the process for recording the outcome of trials has been in place since 2005. Defence practitioners are invited to record their comments on the trial form. However, they cannot be required to complete it.
Solicitors Ian Kelcey and Richard Atkinson, chairs of the Law Society's criminal law committee, said it would have been helpful if HMCTS 'had made plain' in its letter that practitioners would not be expected to breach client confidentiality or privilege. 'Had they sought to consult with us we could have made these points at the time,' the committee chiefs said.