Sentence Reduction for Guilty Pleas in England and Wales

İngiltere ve Galler’de Suçu Kabul Etme
(Guilty Pleas) Halinde Uygulanan Ceza İndirimi

Ergül ÇELİKSOY

Guilty pleas could be beneficial for defendants, society and victims unless the commensurate sentence reductions awarded in recognition of the expediency of such pleas obscures their benefits. In England and Wales, the Sentencing Council’s guidelines on reduction in sentence for a guilty plea, along with the Court of Appeal’s guidelines on giving advance indication of sentence, have been criticised for placing unacceptable pressure on defendants to induce them to plead guilty instead of going to trial. This article explores how the current practice of sentence reduction for guilty pleas works in England and Wales.

Sentence Reduction, Guilty Pleas, Sentencing Council for England and Wales, Sentencing Guidelines, Turner, Goodyear.

Ceza hukukunda şüphelilerin işledikleri suçu itiraf etmeleri ve bu nedenle haklarında verilecek olan cezada indirim yapılması hem kendileri hem toplum hem de bazı durumlarda suçtan zarar gören (mağdur) için faydalı olabilir. Fakat İngiltere ve Galler hukukunda, suçunu kabul etme durumunda (guilty pleas) uygulanan ceza indiriminin, şüphelinin ya da sanığın mahkeme yolunu tercih edip davanın mahkemede tartışılması hakkını kullanmak yerine, onları itiraf pazarlığı yapmaya zorlayan bir baskı unsuru olduğu iddia edilmektedir. Bu makalede, İngiltere ve Galler hukukunda suçunu itiraf eden şüpheliye tanınan ceza indirimi uygulaması değerlendirilecektir.

Suçun İtirafı, Ceza İndirimi, İtiraf (İddia) Pazarlığı, İngiliz Hukuku, Common Law.

1. Introduction

The sentence reduction for a guilty plea means that a defendant who pleads guilty is sentenced to a less severe sentence than those who committed the same offence but who insisted on resorting to their right to trial.¹ The provisos of the current situation raise fundamentally important ethical and procedural questions, not least why a defendant who pleads guilty is implicitly rewarded with a sentence discount, despite admitted guilt and culpability, while other offenders are implicitly punished (i.e. deprived of the same reduction) solely because they do not forego their right to trial. As explained in this paper, the main rationale for the sentence reduction for a guilty plea is utilitarian, premised on the assumption that guilty pleas are beneficial for defendants, society and even victims of crime, mainly due to the expediency of alleviating the burden on courts and the expense of legal proceedings (as well as reducing the cost of imprisonment for longer sentences), and sparing victims the stress associated with legal prosecutions.²

In England and Wales (E&W) the sentence reduction for guilty pleas is governed by two important guidelines, one described by the Court of Appeal (hereinafter the CoA) and the other issued by the Sentencing Guidelines Council for England and Wales (now the ‘Sentencing Council for England and Wales’, hereinafter the SC).³ The guidelines described by the CoA concern advance indication of sentencing from the judge, allowing defendants’ lawyers (or defendants themselves if they do not have a lawyer) to seek an indication (advance indication of sentence) regarding the likely sentence to be handed down by the judge if the defendant pleads guilty. The obvious ethical issues involved in such huckstering are circumvented by the fact that judges are not compelled to give an indication, but if they chose to do so, they should not indicate the exact sentence they are minded to declare; rather they can point out the maximum sentence that the defendant would be subjected to in the event of entering a guilty plea.

This was elaborated upon in the definitive guideline issued by the SC. The role of the SC is ‘to promote greater transparency and consistency in sentencing, whilst maintaining the independence of the judiciary’.⁴ In this respect, the SC issued its first definitive guideline on the sentence reduction for guilty pleas in 2004, revised in 2007. Finally, it issued a new definitive guideline of sentence reduction for guilty pleas in 2017, which came into force on 1 June 2017.⁵ The 2017 definitive guideline applies for cases where the first hearing is on or after 1 June 2017, equally in Magistrate and Crown Courts. For cases where the first hearing was before 1st June 2017, the 2007 definitive guideline remains in force.

The SC guidelines stipulate the proportional maximum and minimum amount of sentence reduction (a reduction of one-tenth to one-third in exchange for a guilty plea), according to the stage at which the defendant enters a guilty plea, and the strength of the evidence upon which the prosecution is based.⁶ Defendants and their lawyers now know the magnitude of sentence reduction for guilty pleas through the SC’s definitive guideline, ranging from one-tenth to one-third. In addition, they can still seek an advance indication from the judge as to what the maximum sentence would be if they entered guilty pleas at any stage of proceedings, as in the CoA guidelines. Although both measures aim to encourage defendants to plead guilty at an early stage of the proceedings, they also lead to some concerns that the current practice of sentence reduction in E&W puts unacceptable pressure on defendants to make them plead guilty, which is clearly not beneficial to defendants, and which may have dubious benefits mixed with profound harms for society and the judicial system.

This paper analyses the extent to which guilty plea bargaining is beneficial for victims, defendants and the society, and explores the practice of sentence reduction for guilty pleas in E&W. The following section briefly evaluates the benefits of guilty pleas for defendants and society and how the excesses of the plea bargaining obscure these. Section 3 explores the practice of sentence reduction for guilty pleas in E&W. First, it explains the CoA’s guidelines on advance indication of sentence set out in the Turner⁷ and Goodyear⁸ decisions with regard to the advance indication of sentence. Second, the paper examines the SC’s definitive guidelines on sentence reduction for guilty pleas and concludes with an evaluation of the practical implementation of these guidelines as a whole.

2. Rationale behind Sentence Reduction for Guilty Pleas

Before building any discussion on whether a sentence reduction is acceptable in order to secure defendants’ position in relation to the prosecutor in plea bargaining, it is important to explain the underlying assumptions upon which the practice of reducing sentences in exchange for guilty pleas can be beneficial for defendants, victims and society. The most compelling practical argument in favour of guilty pleas is that they accelerate the course of legal procedures and decrease the caseloads of courts, predicated on the expediency of this outcome for society in terms of saving time and community money, which departs from the traditional individual rights and liberties orientation of many legal systems, most notably the English.⁹ However, there is a genuine urgency of the expediency of speeding up cases; Bagaric and Brebner claim that if all defendants preferred to go to trial instead of pleading guilty, “the criminal justice system would literally grind to a halt - the delay between charge and trial would blow out to many years”.¹⁰ For example, In 2016/2017, 390, 344 defendants pleaded guilty in magistrates court (out of 499, 816 CPS prosecutions in magistrates court) and 61, 808 defendants pleaded guilty in Crown Court (out of 88, 205 CPS prosecuted by the CPS in the Crown Court).¹¹ This statistic is an index of the importance of the guilty plea in decreasing the caseloads of the court and saving time and money - the current infrastructure of the Crown Courts handles basically 10% of the potential cases it would be bound to process as full trials in the absence of guilty plea bargaining.

Another important argument is that guilty plea can be beneficial for victims, witnesses and others involved in the case because it frees them from the ordeal (and hassle) of giving statements in court.¹² Roberts and Bradford claim that if victims are vulnerable, courts are likely to prioritise plea bargaining to spare them from the protracted suffering of a fully enacted case.¹³ In addition, Leverick suggests that for victims or witnesses of crimes, giving evidence in trials can be more stressful than the actual events they experienced.¹⁴ Thus, a guilty plea can make lots of sense because it allows victims and witnesses to be spared having to testify by encouraging defendants to plead guilty. Additionally, since the delay between the charge and conviction of the defendant is not so long in the case of the guilty plea, as in all but the most exceptional cases it guarantees a conviction, a guilty plea rather than going to trial can be more beneficial for victims instead of the traditional drama of waiting for the moment when the judge issues the verdict.¹⁵

The argument that guilty pleas would be beneficial for defendants is that they can obtain a sentence reduction if they plead guilty rather than going to trial. This sentence reduction is an award for offenders who entered guilty pleas and contributed to saving public time and money and sparing victims and witnesses the trial process.¹⁶

It is generally assumed that all innocent defendants (and some guilty ones) refuse plea bargaining and prefer to go to trial, while some guilty defendants enter plea bargaining,¹⁷ but it is conceivable for innocent defendants to enter plea bargaining in order to trade-off a lighter sentence when anticipating a wrongful conviction.¹⁸ The decision of plea bargaining depends on the evaluation of the possibility of conviction and acquittal by defendants; if the former outweighs the latter, even if believing themselves to be innocent, defendants may sacrifice their right to trial in exchange for a lighter sentence.¹⁹ Therefore, it is important to be careful in the determination of the magnitude of the sentence reduction for guilty pleas, since a larger sentence reduction could put improper pressure on defendants to plead guilty rather than using the right to trial. If this incentive is overbearing, it can quickly amount to coercion, in which case the excesses of plea bargaining obscure its potential benefits.