He Knows Whether He Is Guilty or Not

Written 2nd June 2017 by Ruth Peters

Max Saffman considers the new definitive guideline on reduction in sentence for a guilty plea.

The discount for pleading guilty has always been controversial. Why should a defendant get a third off his/her sentence just because it has been admitted? If found guilty by a jury the sentence is for the same crime but with an extra third on top.

Why is Credit Given for Guilty Pleas?

The justification has always been that by pleading guilty it reduces the impact on the public purse (court time as well as prosecution and defence costs) as well as negating the need for witnesses to attend court to give live evidence that at best is inconvenient for them and at worst heart-breaking.

As a defence lawyer I always feel disingenuous advising the client that there is credit for plea, even more so than when their instructions are definite, not guilty. Why is my lawyer telling me about a reduced sentence if I plead when I am telling him I’m not guilty? Whose side is he on?

However this is not the purpose of the guideline. The purpose was confusion, as to when the first reasonable opportunity to plead guilty was and whether there is any obligation on the Crown to serve any evidence other than a scant case summary.

When advocates complained they couldn’t advise their client because they hadn’t been served with any witness statements or exhibits, some Judges retorted ‘He knows whether he has done it or not’. The great British legal system that is seen a benchmark and admired the world over boils down to this. He knows whether he is guilty or not!

New Sentencing Guidelines – Guilty Pleas

The new guidelines clarify this point and it comes as no surprise they aren’t defendant friendly, although they make no mention of acceptance of guilt at the police station

A defendant is entitled to a full discount of one third if:-

  • Plea or intimation of plea (if indictable only) is given at the Magistrates’ Court so invariably before any ‘evidence ‘is served. The Defendant ‘knows whether he is guilty or not’ argument triumphs.
  • A Section F exception, in the opinion of the Judge, applies. In colloquial terms ‘He doesn’t know whether he is guilty or not’.

How would a defendant not know whether he is guilty or not (or as the guidelines say ‘understand the allegation’)

The Judge will have to determine whether the allegation requires advice to be given, determine whether the Defence should have had sight of the evidence in order for the defendant to understand the allegation, and determine if without the evidence there is a possible defence before the plea is entered. The Judge will have to decide whether such arguments are proper and effective or whether it is a ploy to see what evidence the Crown have before the plea is entered.

Will the new guidelines clarify the position on guilty plea credit?

This will place the lawyer in a difficult position. It may create a situation when privilege is being waived and possibly create a conflict between solicitor and client.

So although the new guidelines are helpful in setting out when full credit is available, they raise a number of issues as to when it’s not. We await with interest the approach taken by the Judiciary.

Max Saffman – Higher Court Advocate and Specialist Criminal Lawyer

Written by Max Saffman. Max has extensive experience of the full range of criminal law including murder, allegations of people smuggling, firearms offences, robbery, rape, sexual assault and serious drugs conspiracies and has spent the last ten years as a specialist Higher Court Advocate.

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