Sentence reduction for guilty pleas: risks in new guideline
14 June 2016
In its report on the draft guideline on reducing sentences for those who plead guilty, the Justice Committee says it risks having an adverse impact on the prison population and on vulnerable defendants – such as those with learning difficulties or mental health conditions.
- Report: Reduction in sentence for a guilty plea guideline
- Report: Reduction in sentence for a guilty plea guideline (PDF 301 KB)
- Justice Committee
Sentencing Council's draft guideline
The Sentencing Council's draft guideline is designed to incentivise defendants who are going to plead guilty to do so as early as possible in the court process – a rationale that the Committee endorses. Early guilty pleas normally reduce the impact of the crime on victims, save victims and witnesses from having to testify, and save public time and money on investigations and trial.
The draft guideline maintains the current reduction for a plea at the first stage of court proceedings (one-third), with a lower reduction at a later stage compared to that currently available: one-fifth, rather than a quarter. The point at which a defendant can benefit from the maximum reduction is also more tightly defined: they must plead guilty the first time they are asked for their plea in court.
Potential impact on prison population
The goal of the draft guideline is to influence the timing of guilty pleas, not the proportion of guilty pleas entered. However, as the Sentencing Council's draft resource assessment acknowledges, limited research in this area means that there is some uncertainty as to how defendants are likely to respond.
Some defendants, having missed the full one-third discount, may opt to go to trial and – if found guilty – could serve longer prison terms by losing credit for an early plea. On this assumption, up to 4,000 additional prison places may be needed. Even if more offenders do plead guilty at the first stage, the Council's assessment estimates that 1,000 additional prison places would be required, because the new guideline is designed to ensure that sentence reductions are applied more consistently than under the current guideline. Given the difficulties in estimating the resource implications, the Council proposes to conduct an impact assessment in 2017.
Committee Chair Bob Neill MP said:
"There has not been enough research to assess the possible impact on prisons and other aspects of the criminal justice system. The Sentencing Council should conduct further research into the factors that influence a defendant's decision to plead guilty, to inform a more comprehensive and robust reassessment of the draft guideline, taking into account costs and savings to all aspects of the criminal justice system, especially the prison population."
The Committee also recommends that the exception allowing a defendant more time before deciding on their plea if further information or advice is necessary should be extended to any situation where the defendant wishes to obtain legal advice before deciding whether to plead guilty and has been unable to do so. The exception should also extend to corporate defendants who may need to conduct detailed investigations before deciding how to plead. In making this recommendation, the Committee took into account the draft guideline's potential impact on unrepresented defendants, particularly in the magistrates' courts. These concerns are supported by a recent report from Transform Justice, which suggests that around a fifth of defendants are now unrepresented in non-traffic trials and sentencing hearings.
Criminal Cases Review Commission evidence
The Committee was particularly struck by the submission to the Sentencing Council's consultation from the CCRC. This highlights the fact that a significant proportion (26.7%, based on a sample of CCRC applications over the past three years) of those who apply for a review of their guilty conviction had entered a guilty plea. The CCRC observed that systemic and personal pressures to plead guilty are capable of extending to the factually innocent, as well as the factually guilty, and goes on to suggest that this may be a particular problem for vulnerable groups such as those with mental health conditions.
Equality impact: defendants with learning disabilities, autism and mental health conditions
The Committee considered available evidence on the likely impact of the new guidelines on vulnerable defendants, especially on those with learning difficulties, autism or mental health conditions. For example, the Bradley Report concluded that people with learning disabilities (estimated to be 20-30% of offenders) may face problems in dealing with the workings of a courtroom, particularly in understanding questions that are leading or complex.
Bob Neill MP added:
"We were surprised that the consultation paper does not mention the potential impact of the guideline on disabled defendants – in particular, those with learning disabilities, autism or mental health conditions. The Council should undertake a comprehensive equality impact analysis, and consider how to mitigate any adverse impacts relating to defendants with protected characteristics including disability."
The current definitive guideline was issued by the Council's predecessor body, the Sentencing Guidelines Council (SGC) in 2007. Under this guideline, defendants can benefit from a one-third reduction if they plead guilty at the 'first reasonable opportunity'. There is evidence from the Crown Court Sentencing Survey that the SGC guideline is not always applied consistently and that in some cases the levels of reduction appear to be greater than those that are recommended.
The Sentencing Council's new draft guideline is proposing that, to benefit from the maximum sentence discount of one-third, defendants will face a stricter timetable for entering a guilty plea. They will have to plead guilty at 'the first stage of proceedings', i.e. the first time they are asked for their plea. For summary offences, the 'first stage of proceedings' means up to and including the first hearing at the magistrates' court. For either-way offences, it is defined as up to and including the allocation hearing at the magistrates' court, and for indictable-only offences, the first hearing in the Crown Court. A modified definition applies to offences dealt with in the Youth Court.