Thursday, July 20, 2006

Criminal Justice Reforms

The Home Secretary has decided to review and reform the UK criminal justice system. One of the key reforms is "ending automatic time off for guilty pleas." I could ramble on for a long time talking about all of the proposed reforms but I will save that for a later day.

It seems that the government is not happy with people being given less of a sentence for pleading guilty at an early stage in the proceedings of a criminal case. It strikes me as being odd that the government is unhappy with this proposition as it was this very government who established the Sentencing Guidelines Council. It was the Sentencing guidelines Council who published a document called Reduction in Sentence for a Guilty Plea and who effectively created a binding guideline for all criminal Courts in the UK to follow. Where a defendant enters a timely guilty plea they are to be given credit for their guilty plea in terms of discounting the sentence that they would have otherwise recieved had they not pleaded guilty.

I cannot go one day without having to confirm to a Court, or make a note in my own files, that I have advised a Client that if they plead guilty they will be given credit for their early guilty plea.

Why do the Courts give credit for early guilty pleas? Well, it is to reward a Client for being honest with the Court and to reduce their sentence to take account fo the fact that a timely and costly trial has not taken place.

If Dr. Reid does want to take away the idea of discount for a guilty plea then he is likely to find lawyers advising Clients that they have nothing to lose by pleading not guilty. If the sentence will be the same whether the person is convicted after a trial or pleads guilty then what is the point in pleading guilty? If there is no carrot being dangled to intice a guilty plea defendants are likely to plead not guilty.

17 comments:

Anonymous said...

I'm against 'rewarding' people with reduced sentences for making early guilty pleas. It does *NOT* reward honesty - what it does is to reward people for throwing away their right to fight their case, for choosing *NOT* to have the evidence against them tested by a court.

Let's say a man, call him Dave, is accused of a crime, let's say, abusing a child some years previously when he worked in a foster home. Dave knos he didn't commit the crime. His legal advisors tells him that it is a big gamble to fight his case because child abuse is an emotional issue and juries are often swayed by flawed and circumstantial evidence. He could go to prison for a long time if found guilty in court, says his solicitor, but *if* he pleads guilty early in the process, he will go to prison for much less time. The 'reward' for an early guilty plea is a form of intimidation. If Dave does plead guilty, as so many have done in order to avoid long prison sentences, then the evidence against him is *never* tested. This means that the police and the CPS can put forth weak cases, particularly those involving emotional issues. They will know that they don't have to do much work to 'clear up' a crime. The loser: Dave and the 'justice' system of this country.

If evidence is not tested by a court, how can anyone say that justice has been done? Plea bargains, and that is what this is, are a form of corruption.

What would happen, do you think, if the legal system did away altogether with pleas? What if every case had to come before a court? It would certainly mean more money had to be put into the court system but it would, in my opinion, mean that fewer weak cases were brought, cases that are only brought in the hope that the defendant will throw away his right to fight his case by pleading guilty.

I realise, by the way, that the government isn't getting rid of this 'reward' because it cares about justice but because it wants to appease the tabloids.

The Enforcer said...

As a probation officer, I'm with anonymous on this one - I've lost count of the number of offenders who plead guilty and then come to me claiming they're innocent. Which makes working with them so much more difficult! There must be some way of finding a middle way so that, where the evidence is overwhelming, no credit is given; but for those who do assist police in their enquiries, and so on, should get something.

Blimey, I think I've just agreed with the Home Secretary... won't happen again!

Bystander said...

There is also the important issue of sparing witnesses the trauma of giving evidence.

WigAndGown said...

A properly advised defendant is told that he must only plead guilty if he is actually guilty. When his Solicitor / Counsel mitigates for him, he can't put forward any mitigation that suggests that he is not guilty of the offence.

Now, I accept that some people plead guilty for other reasons, but that is their choice. If they have been properly advised, they know what they are admitting.

'Dave', the man in the example, is more likely, in my experience, to plead not guilty and stand his trial, unless and until the Crown serve overwhelming evidence that suggests his guilt.

The CPS code for Crown Prosecutors states that they must only bring / continue a prosecution where there is a) evidential sufficiency and b) it is in the public interest to proceed. As someone who prosecutes and defends, I'm not sure that those tests are always met.

I don't understand anonymous's last paragraph (do away with pleas so that the CPS only brings cases so strong that the defendant pleads guilty) - I'm not sure how prosecuting fewer people will be more tabloid friendly??

Anonymous said...

To WigAndGown:

What is there not to understand in my penultimate paragraph? To repeat: what would happen if the legal system did away with all pleas. That means that a defendant could not be 'rewarded' for pleading 'guilty' and that means that the evidence against the defendant would be tested in court. This is meant to do away with the prosecution bringing weak cases in the hope that the defendant will plead 'guilty', thus meaning that the evidence is *never* tested in court.

I do not see how justice can be done unless the evidence against the defendant is tested in court. With the reduction in sentence for early pleas, people were being bribed and intimidated into pleading guilty. Not only, as the enforcer, does it give those who are really guilty a cover, but it produces a miscarriage of justice.

If a defendant pleads to get his sentence reduced, because he is afraid of a longer sentence if he loses the gamble of fighting his case, then all avenues of appeal and clearing his name are closed. Forever he will be tarred with the crime, a crime that no-one can be certain he committed because he might well have been intimidated into pleading guilty.

A defendant stands to lose his liberty and, if he has one, his good name. He should not be pressured into losing them because it is cheaper and simpler for his legal advisors and the state to have him plead guilty.

Remember: justice should never be a business but the business of any civilised country should be justice.

Anonymous said...

To bystander:

The witnesses are not in danger of losing their liberty - the defendant is. The witnesses are not in danger of losing their good name - the defendant may be. I should think those two things are far more 'traumatic' than giving evidence in court.

Do we want a system where evidence is never tested? Do we want a system where *accusers* are called 'victims' even before a court has found that any crime has been committed? Do we want a system where defendants are pressured into pleading guilty for reasons of cost? Or do we want justice? As a magistrate, I would hope that you would vote for justice, but having read your blog, I sincerely doubt that justice is anywhere on your mind.

Caracus said...

Anonymous... you really don’t seem to get it. In you example 'Dave' pleads guilty because he thinks he will be found guilty by a jury and so might as well get a lower sentence by pleading guilty early (even though he apparently did not do the crime). So obviously you (or at least Dave!) dont have much faith in a jury returning a right verdict. Thereofre if there was no discount for an early plea according to your example 'Dave' would still most likely be found guilty and sent to priosn for longer! Reductions for early guilty pleas are needed as the courts are alreasy stretched and the cost of jury case reguarly runs into the millions. Are you going to pay more taxes (or recieve less benefits) so this can happen? If you plead guilty when your not your fault...period.

Anonymous said...

To caracus:

It is you who does not get it.

Dave is frightened: is it his fault that the system is set up to frighten him? He has never been in trouble with the law before. He is intimidated by the legal system. He knows he is innocent but his solicitor tells him that in emotional cases like this, that doesn't matter because juries are often swayed by emotional arguments and they often convict 'just to be safe' and 'for the children'. Dave does *NOT* wish to plead guilty but he doesn't want to go to prison for a long time. He doesn't want to go to prison at all, but he has been told by a his legal advisor, someone who knows the system, that it's no good to fight, that he is, in effect, powerless, so he might as well lose his liberty for something he didn't do, that if he gives in, he will lose it for less time than he would if he fought his case.

The solicitor who advises Dave in this manner has no faith in the system. He knows that juries are easily emotionally swayed especially when the defendant is accused of child abuse. The solicitor has given up and so he wants his client to give up, as well. He salves his conscience by advising the client to go for a reduced sentence. The solicitor is part of the corrupt system. He condones the corruption. He helps the police and CPS to bring weak cases to court. He doesn't care about justice.

The police and the CPS also have no faith in the system, but they find this is to their benefit. They know that honest, innocent people are those who are most likely to be intimidated by the legal system, to be worried about being imprisoned, and thus, are those most likely to give up their right to fight their cases in return for a reduced sentence, simply because they are frightened. They know that this allows them to bring cases where the evidence is weak or nonexistent. They don't care. If they intimidate the defendant into pleading guilty, well, then, they have scored another victory; another 'crime' has been cleared up. Only no-one knows whether a crime has been cleared up or whether a man has simply been intimidated into pleading guilty to something he didn't commit. They don't care about justice.

Judges also have no faith in the system; they know very well that defendants are bribed and intimidated into making early guilty pleas and they do nothing to stop it. They were very willing to threaten to 'down tools' if they didn't get their way about pensions, but they say nothing - not one word - about people being pressured into giving up their right to fight their case in court. They don't care about justice.

From Wikipedia: 'Torture is any act by which severe pain, whether physical or psychological, is intentionally inflicted on a person as a means of intimidation, deterrence, revenge, punishment, or information gathering. It can be used as an interrogation tactic to extract confessions. Torture is also used as a method of coercion or as a tool to control groups seen as a threat by governments.' And this: 'One well documented effect of torture is that with rare exceptions people will say or do anything to escape the situation, including untrue "confessions" and implication of others without genuine knowledge, who may well then be tortured in turn.'

Dave is being tortured: he has been told by his own solicitor that his case is good as lost, not because he has done anything, but because that is how the system works. Have you ever thought about the mental state of a person who has been told this? Have you ever thought about how painful this would be? Dave is then offered, in return for a *confession*, a reduction in the amount of time he will lose his liberty. He is being psychologically tortured to confess to a crime he did not commit to save the state time and money. Gosh, what a wonderful legal system. Not.

Yet Dave's case could be fought. His solicitor and his barristers could make certain the evidence, such as it is, is tested in court. Without this 'reward' of a reduced sentence for an early guilty plea they just might do it - they might get off their backsides and *defend* their client. If there was no reduced sentence for early guilty pleas, then solicitors and barristers, and even members of the public, tired of juries convicting people because they are emotionally swayed might just do something to improve the system so that it didn't happen. They might actually start trying to achieve justice.

As it is, with reduced sentences for early guilty pleas, there is no incentive for the legal system to change anything. Solicitors, barristers, and so forth, can say they offered the defendant the choice of a reduced sentence and so salve their consciences that they 'did their best' for him and that it is *his* fault that while being in very frightened state and in great mental pain, he pled guilty to a crime he didn't commit. As it is, people are being tortured for the 'noble' cause of saving the state time and money.

Cost should *never* come into the administration of justice. Never! The liberty of individuals is at stake and you talk of money. That tells me all I need to know about your commitment to justice. You blame a victim of torture for giving into his torturers and you do it to save the state money. You are not fit for the company of civilised men.

Yes, I am willing to pay more taxes for justice; any person with even a tiny bit of decency would be. The government should spend money on making the justice system the jewel in the crown instead of spending money propping up 'single' mothers, giving 'sweeteners' to IT contractors, handing out benefits to bogus refugees, and waging foolish, unwinnable wars.

Without justice, the legal system is simply a collection of rules put in place by rulers to keep the ruled in their place. Without justice, a country cannot call itself civilised. Justice is not a business - should never be a business - but the business of any civilised country should be justice.

nef said...

The discount for an early guilty plea is an expedient to keep the criminal justice process working. There is no reason in principle why the sentence for the same wrongdoing should be different depending on whether the offender pleaded guilty or was convicted after a trial. If this expedient is to be part of the system there is no reason why it should not apply to those who face an overwhelming case as well as to those where there is more room for argument. There is no such thing as a defendant who has no choice but to plead guilty. Everyone has the choice, and someone facing overwhelming evidence can cause as much expense and difficulty by forcing a trial as anyone else. And , if the end result cannot be any worse, why not have a go? Who knows, something may turn up, the key prosecution witness may be struck by lightning.

Well the government at the insistance of the tabloid press is now going to take a principled stand and make sure that offenders do not receive one jot or tittle less than their just deserts simply because they plead guilty. (Well maybe they are - these big initiatives and crackdowns don't always live up to their billing when you read the small print).

Let's see if the ink is allowed to dry on the page before tabloid hysteria breaks out about manifestly guilty defendants being able to raise two fingers to the criminal justice system with impunity by running absurd defences - especially if "something turns up" for one or two of them. At which point the government will announce new iniatives to rebalance the etc etc (or whatever buzz phrase is in vogue at the time) including incentives to encourage guilty defendants to plead guilty at the earliest possible stage.

Helen Sparkles said...

I think Dave has blown his anonymity?

Some people are badly advised, but it would be pure stupidity to plead incorrectly to a crime which could have such an impact on your life and future. The system isn’t perfect, but find me any system which is, and not just a legal system.

The fact that law and order, and immigration, are such hot topics right now is pure politics; they are vote winners and a hope that we will forget the shambles that is the NHS we love.

Caracus said...

Anonymous or 'Dave' you come back with a very long post that really doesn’t make a lot of sense. You suggest that to put anyone up for trial is akin to 'torturing’ him or her. Well what do you suggest we do then! If we only ever put people who were definitely guilty in front of a judge jury (to save an innocent man/woman from being tortured) then what would be the point of a court system?? (btw this is obviously an impossibility). The whole point of court is to test the evidence (against a very high benchmark – more on that later!). Do you have any real knowledge of how the legal system in this country works (except from maybe being in the dock?) Do you realise how high a benchmark 'beyond reasonable doubt is'?? No system is perfect and I accept that occasionally the odd innocent man or woman will be found guilty when they should not have been. But no one has yet come up with a better system and the alternative to having a law system would be complete lawlessness (Perhaps you find the prospect of anarchy appealing?). Which would you rather have? In which world would you really be more likely to be tortured (i.e. the one with an imperfect law system or the one with no law system). I have spent many hours in courts and have seen many people who I knew to be guilty walk free but I accept that this is a consequence of our system, which demands the burden of proof is on the prosecution. (I realise at this point you may want to ask how I ‘know’ there guilty – well when you see the same people in front of the same court for the same offence you can kind of take an educated guess but I’m sure you will just suggest that this is because they are being repeatedly ‘set up’ by the corrupt system or some other similar nonsense)

I also cannot find in your lengthy post an answer to my main point, which was what is your point? If ‘Dave’ pleads guilty he goes to jail and if he pleads not guilty he goes to jail by your reckoning. I’m sorry if you have witnessed or been involved in a case where you thought justice was not done. But no one is going to dump the whole system without a good alternative just because the occasional mistake is made. The vast majority of police, people working for the CPS and barristers etc are professional people doing a job. Your sweeping tabloid esque view that the whole system is corrupt does the law system in our country a great disservice. Do you think many other countries have a better system? Where would you rather be tried a) in some third world country with a long history of well documented mass human rights infringements (i.e. some real torture you know that which involves someone actually being subjected to physical pain) or b) in the UK with all the protections and checks that free legal advice and a system of appeals offer? I know which one I would rather have there is not a country in the world I would rather be tried in if I was innocent of a crime I was accused of.

WigAndGown said...

Right, I shan't repeat my comments from the post 'Nothing to Say' but I am going to assume that you 'Anonymous' are the same person who has posted on that.

I'm not sure if you are (a) someone who has pleaded guilty in the past and now wants to have their cake and eat it by saying that you were not guilty and lent on, or (b) someone with no direct contact with the criminal justice system who thinks they know best.

Suggesting that poor advice (or 'torture' as you amusingly and wholly disproportionatly extrapolate it to be) is the root of the problem and that as a result we should end the concept of pleading is using a sledgehammer to crack a nut.

I said before that I didn't understand you last sentence and so you helpfully repeated it rather than actually explaining it. Let me see if I now understand it:

There is no such thing as a plea.
The CPS therefore will then only prosecute strong cases (nb: what is strong? is the definition something like that I explained above?)
The case will then be so strong that the defendant will plead - BUT HOW CAN HE IF THERE IS NO SUCH CONCEPT AS A PLEA???

If what you are saying is that a defendant shouldn't be able to plead early, but only once the Crown have brought their strong case then that's how the current system works. The add-on is that a defendant can wave his right to see all the evidence and plead when he likes. 99.5% however, will wait to see all the evidence before they make up their mind.

'Dave' is a poor example.
Dave will always wait until he has seen all the evidence.
Dave will be advised but ultimately have to make his own choice.

Dave wants to plead guilty - most Dave's do so because they are guilty. It seems that your Dave is indicative of society today - 'My acts are someone else's fault, not mine'.

Finally, your allegations of lazy lawyers, people not being fit for the company of civilised men and the general tone of your email reminded me of something - take a look at this link :

http://en.wikipedia.org/wiki/Conspiracy_theory

scroll down to the the second paragraph entitled 'features'

Anonymous said...

anon, enforcer et al:

If "Dave" claims to be innocent, but pleads guilty in court, he is a lying perjuring toerag. If he is prepared to lie in a court of law, why should I be unduly concerned about protecting him?

Anonymous said...

As a defence solicitor, I know that if the evidence against a client is overwhelming they will be told this. If the evidence is poor they will be told this. They will also be told that defence solicitors ADVISE clients and that at the end of the day it is the client who makes the decision. Dave's lack of faith in the system, whatever the reason, appears to be predicated on his defence team not doing their job. This should never happen, and in my experience over a number of years, only happens rarely.

Credit for Guilty pleas is essential for our system of justice. Those who want to test the evidence can. Those who accept their guilt don't. Simple as that!

reflectingdippy said...

if you remove early plea system you are asking people to plead not guilty even if evidance is 100%against them as there is a chance that an abuse of process could happen get the case dismissed or a jury go not guilty this would only mean that the processing of trials would be longer at the moment a simple trial case usually is in the system 6months to a yr you remove the guilty plea system this will rocket to 2yrs as the government wont build more crown courts as it means training more judges more wages they r trying to do the legal proffesion out of money they deserve to have so that option of new courts wont entice the government they will just simply allow things to drag out


as for the evidance test there is no garantue that the prosecution do the tests to there evidance for instance a case resently a young girl suposedly harased by some one in one place were her family had said she was with them so the prosecution dont have a case as they cant fulfill there test as the evidance is contrary to the allegation but the prosecution just hid those statements in unused material it obviously came out at trial and the person was aquitted as rightly should have been so you cant always as a defence solicitor i spose this is being synical but u cant trust the documentation the cps give you


as for clients pleading guilty when there not who cares the client knows what there doing and have obviously thought about it and as we all have the freedom of speech and choice let them dig there own grave they may go guilty to protect themselves maybe something in there history they may not want revealed or maybe its first offence maybe a public disorder lieklyhood of a fine and probation there scared of the system as its so complex and plays with there emotocians easy guilty plea get a good psr and get a slap on the wrist theres loads of reasons y but we should not change the ple system

Anonymous said...

What chance do the innocence have when faced with the fact, just give in you wont win your going to prison anyway. It cuts me to the core for them that do the crime get away with it them that dont have to suffer as the system is all wrong. I have no faith, early pleas should not be rewared, as it works for the crimnal.

HJM said...

My son is now serving a sentence for a crime he didnt commit, he and a group of mates were involved in an altercation - they all dress the same, all look similar. My son was made to wear something he wouldnt be seen dead in for an identity parade and when witnesses wanted to speak up on his behalf they werent on the witness list, so couldnt. The only witnesses that actually were allowed to give evidence were those for the prosecution and oddly enough it was the person that actually did the crime and his girlfriend. Up until that point my son was pleading Not guilty but was told by his barrister that if found guilty his sentence would be doubled. Hence he pleaded guilty to something he didnt do and has now lost family and friends because of it!

Is there anything that can be done. the offence was GBH with intent.