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To plead or not to plead - that is the question?

To plead or not to plead - that is the question?

By Matthew Bliss - JSP Law

The most important decision any defendant has to make is whether or not to plead guilty or contest the charges against them.

By pleading guilty, a defendant is accepting that they have committed the criminal offence that they have been accused of.  A guilty plea results in a conviction, a criminal record and of course an appropriate punishment, determined by the Court which must apply the sentencing guideline for each offence.  The consequences are not to be taken lightly.

By pleading not guilty, a defendant is denying that they have committed the criminal offence that they have been accused of.  The question of guilt is then determined by testing the evidence at a trial when the Magistrates or a Jury decide.  They do so by applying the law to the facts as they determine them to be having heard the evidence.

Guilty pleas are welcomed by the Courts.  They save the need for a trial so cases are dealt with quicker and money is saved by avoiding the trial process.  The costs of a trial should not be underestimated.  The Judge, the Court staff and the lawyers on both sides need to be paid, the Courtroom has its own maintenance costs and witnesses and jurors are giving up their own time to attend Court.  Some of the more complicated and lengthy trials in the Crown Court can cost millions of pounds.  Also, there is generally less preparation (from both prosecution and  defence lawyers) required for cases where a defendant pleads guilty at an early stage.

The outcome of a trial is often difficult to predict.  What a witness has said in a witness statement is not necessarily what they will say when their evidence is tested under cross-examination.   Similarly, what a defendant says in a police interview or to his solicitor when preparing the case is not necessarily what they will say under cross-examination.  There are also legal issues, such as whether parts of the evidence are admissible or whether the prosecution will be allowed to rely on a defendant’s bad character, which can have a huge impact on the outcome of a case.  Until those issues have been determined, there is always uncertainty about the prospect of a conviction or acquittal.

There is a definitive guideline published by the Sentencing Council called ‘Reduction in sentence for a guilty plea’.  Its purpose is to give guidance to the Courts so that there is a consistent approach to how much reduction should be applied when a defendant decides to plead guilty.  If a defendant pleads guilty at the earliest opportunity then they can expect a one third (33%) reduction from any sentence that they would receive if they were to have a trial and be convicted.  If a defendant waits until the first day of a trial to plead guilty then they will receive a maximum of one tenth (10%) reduction.  Courts are required to determine what sentence a defendant would have received at the end of a trial and then apply the reduction.  The level of reduction is determined by the timing of the guilty plea and is frequently termed as ‘credit’ for a guilty plea.

It all sounds relatively simple doesn’t it?  Sadly, that is not the case.

For most offences, the legal system in England & Wales imposes a burden on the prosecution to prove it’s case.  Therefore, for any competent defence lawyer the question is not simply ‘has my client committed the offence?’ but also ‘can the prosecution prove my client committed the offence?’.  Whilst a defendant can often say what he or she has done, their solicitor cannot advise them on the strength of the evidence until it is disclosed by the prosecution.  It is often the case that the evidence is not disclosed until after the earliest opportunity to plead guilty has passed and that creates a dilemma for both defendants and their lawyers alike.  Few defendants want to admit guilt if their guilt cannot be proven.  Few defence lawyers are comfortable with a defendant pleading guilty before they have advised them on the strength of the evidence.

In most cases, the earliest opportunity to plead guilty is at the first hearing in the Magistrates’ Court.  If a defendant wants his full one third reduction in sentence then that is the time to indicate guilt.  However, in doing so it is without full knowledge  of the evidence and having had an opportunity to be given comprehensive advice on the detail of the evidence.

At the first hearing it is common place to be given a case summary prepared by the investigating police officer and a defendant’s previous convictions (if any).  What is not provided are the statements of all of the witnesses, the exhibits, the unused material and a case summary prepared by a lawyer.  The distinction between a case summary prepared by a lawyer and one prepared by a police officer is not to be overlooked.  Lawyers are trained in the rules of evidence whilst police officers are not.  All too often a case summary prepared by a police officer can make the case against a defendant look stronger than it is because of a lack of understanding of the rules of evidence and also because of a misunderstanding of exactly what a witness has said.

There are other practical problems with indicating a guilty plea at the first hearing.  If a defendant wants to plead guilty but not on the facts as presented in the case summary, the prosecuting lawyer in Court is rarely given authority to accept a basis of plea.  Also, the prosecuting lawyer at the fist hearing is rarely the same lawyer who made the decision to charge so may not always know exactly how the prosecution intends to present  the case and is reliant on the Police case summary.  This is particularly relevant when defendants are charged with a conspiracy to commit a criminal offence, something I address later in this article

It is often the case that a defendant knows what he or she has done but does not know whether their actions and intentions make them guilty of the offence with which they are charged.  Judges and Magistrates’ frequently say “well, regardless of you not having the evidence, he must know if he has done it or not”  With respect, such comments are ignorant of the fact that a defendant might not know how the law will view what they have done.  To use a simple example, a defendant might know that they forgot to pay for their petrol but wouldn’t necessarily appreciate that it was not a criminal offence if they had not been dishonest.  That is why legal advice is so important and part of the process of providing legal advice is to assess the strength of the evidence which is not forthcoming at an early stage.

So when do the prosecution have to give a defendant (or his lawyer) the evidence?  The answer to that question is before the trial although there are directives and protocols.  The Courts usually set a timetable for the prosecution to disclose their evidence and a schedule of the unused material and for the defence to respond to it.  It usually takes up to 10 weeks from the fist hearing to get the prosecution evidence and then there is a statutory 4 weeks (28 days) for the lawyers to read it, go through it with the defendant,  provide advice on an appropriate plea and to serve a defence statement if the charges are to be contested.  The problem for a defendant is that by waiting to receive the evidence they are diminishing the reduction that they will receive if they decide to plead guilty.

It all seems a bit unfair if you are a defendant - the prosecution must prove it’s case but yet you will be penalised for not pleading guilty (by way of reduced credit) before you receive the evidence against you.

From the point of view of the prosecution, a defendant knows what they have done and if the evidence is overwhelming (and they would be convicted at trial if they contested the case) why should they get a reduction for pleading guilty?

One can see it from both points of view but the Criminal Justice System requires the prosecution to prove it’s case and therefore the earlier the evidence is disclosed to a defendant, the earlier a decision will be made as to whether or not to plead guilty, unless a defendant is prepared to plead guilty in the absence of the evidence.

There are some caveats to the above comment about disclosure of evidence and the timing of a guilty plea.  Sometimes defendants are charged at the early stage of an investigation and the task of the Police in gathering evidence continues for many months after a defendant is accused of a crime.  Sometimes, despite overwhelming evidence and an acceptance of guilt, a defendant will choose to make the prosecution prove their case at a trial to delay the inevitable.  For example, a guilty defendant who is granted bail but will inevitably receive a prison sentence upon conviction may want to delay proceedings so that they can be present at the birth of their child or out of prison for another imminent important event in their life.

As a defence lawyer, I always err against advising a client to plead guilty until I am sure that the prosecution can prove it’s case.  However, sometimes evidence has been disclosed during a Police interview (for example CCTV) which leaves little to the imagination as to the strength of the prosecution evidence and a guilty plea at the first hearing is entirely correct and appropriate.  The approach differs on the merits and circumstances of each individual case.

I am currently representing someone charged with a number of others of conspiring to supply class A drugs.  The conspiracy clearly centres around an organised crime group who are said to be supplying cocaine in multiple kilo quantities.  My client is charged with that conspiracy.  He accepts that he has sold drugs in street level quantities for 4 months and if asked, would say he is guilty.  However, the charge against him relates to the supply of multiple kilo amounts over 10 months (not street dealing over 4 months) so what does he do bearing in mind a delay of indication of guilt will be detrimental to the reduction in sentence he will receive?  The law around conspiracies can be complicated and in line with a number of Court of Appeal decisions, in particular Shillam [2013] EWCA Crim 160  a defendant’s guilt in a conspiracy case can rest upon the way in which the prosecution presents it’s case.  The prosecuting lawyer at the first hearing in this case could not answer the question as to how the prosecution is to present its case and consequently the question of guilt could not be determined, even though my client knew what he had done!  Any plea at the first hearing would have had to be to a 10 month multi kilo conspiracy because that was the charge laid.  Thankfully, by the time the case had reached the Crown Court the prosecuting barrister had spotted the problem and matters have now been resolved by way of an alternative charge.

The above is a classic example of how the question of whether or not a defendant should plead guilty is not always as straight-forward as it is perceived to be and why such decisions should be both informed (having regard to the prosecution evidence) and carefully considered, given the consequences of any criminal conviction.

It is only in very limited circumstances that a plea of guilty can be set aside yet the significance of the decision is all too often overlooked.

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