both caroline king and anthony smith make this months messenger

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Newest recruit, solicitor Caroline King who joined us last month features in the "movers and shakers" section and our Anthony Smith writes his first article for the Messenger on the topical issue of credit for a guilty plea taking into account the new guidelines from the Sentencing Council.

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Anthony's full article is below.

PRESSURE TO PLEAD GUILTY?

Credit for a guilty plea has been a key concept in criminal proceedings for many years. For those reading this article who are not familiar with the system, a defendant who pleads guilty as opposed to being found guilty after a trial are entitled to a certain amount of credit (maximum one third) for that guilty plea, with the percentage of credit varying depending on which stage of the proceedings that plea was entered. Credit = a more lenient sentence.

With effect from the 1st June 2017, the Sentencing Council published a new definitive guideline regarding a reduction in sentence for a guilty plea.

Whilst the Guideline specifies that nothing within it should be used to put pressure on a defendant to plead guilty, as a solicitor in our Crown Court department I cannot help but think it has the complete opposite effect and the defendants are under pressure to indicate a plea at the first appearance before a Magistrates Court.

Ordinarily, particularly for indictable only offences, full credit would be preserved until the Plea and Trial Preparation Hearing at the Crown Court. This position has adjusted somewhat in light of the new Guideline. Defendants are now expected to ‘indicate’ a plea to an indictable only offence at the Magistrates Court in order to attain full credit at the Crown Court.

There are exceptions that do apply to credit being preserved, with the most common exception likely to be the Judge having to make a distinction between cases in which it is necessary to receive advice and / or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence charged, and cases in which a defendant merely delays a guilty plea in order to assess the strength of the prosecution evidence and the prospects of a conviction or acquittal.

We must not forget one of the key principles of criminal law, which is that the prosecution must prove the case against the defendant. It is not uncommon (in fact, it is quite frequent) that we attend at the Magistrates Court with very little information provided regarding the charge, and the information that we are provided with (often just the MG5 police summary) tends to be inaccurate or does not portray a full picture of the case. How can we be expected to properly advise a client with such little or inaccurate information and expect them to indicate a plea at the first appearance?

In order for this system to work, the Crown Prosecution Service must seek to ensure that key witness statements and key exhibits are made available to the defendant and their solicitors from the very outset. This isn’t always possible, but this should be factored into account at a later stage when attempting to argue with a Crown Court judge that credit should be preserved.

It remains to be seen how Judges will deal with the issue of credit once matters arrive before them at the Crown Court. However, I do expect advocates in many cases will now become embroiled in arguments over the amount of credit to be awarded to a defendant.

Whilst the variation between 33% and 25% credit may not appear to be hugely significant on the face of it, but that 8% difference can be significant particularly for serious offences and may make the difference between a custodial and a non-custodial sentence for the less serious.

Anthony Smith

Burton Copeland