Chapter 16: Sentencing procedure and principles

Transcription

1 Chapter 16: Sentencing procedure and principles Chapter 16.3 and 16.4: Sentencing procedure (pp 740ff) Under s 57D of the Crime and Disorder Act 1998, where a live link direction is already in force for a preliminary hearing and the defendant pleads guilty to the offence in the course of that live link hearing, the court may continue the hearing as a sentencing hearing in relation to that offence. Similarly, under s 57E of the 1998 Act, where the defendant is convicted of an offence and it appears to the court that it is likely that he will be held in custody during any sentencing hearing for that offence, the court may give a live link direction in relation to that hearing (so that the defendant attends the hearing through a live link from the place at which he is being held). The defendant s consent was originally required, but s 106 of the Coroners and Justice Act 2009 amends ss 57D and 57E so as to remove the requirement for the defendant's consent to attendance (or continued attendance) via live link and to giving oral evidence through the live link. Chapter : Newton hearings (pp ) In R v Lucien [2009] EWCA Crim 2004, the Court of Appeal held that, where a judge does not accept the basis of a defendant s plea of guilty, he is obliged to inform the defendant of that fact before proceeding to sentence, so that the defendant can decide how to proceed (e.g. to make submissions or to call evidence on the matter). In R v Cairns [2013] EWCA Crim 467, Leveson LJ (at [2]-[10]) gave further guidance on guilty pleas and Newton hearings: 2. It is a cardinal principle of our criminal justice system that, for those cases decided in the Crown Court, a jury decides on the guilt or otherwise of those charged with crime. That critical decision concerns only whether the ingredients of the criminal offence or offences (as set out in the indictment) are proved. The jury is not concerned with what might be described as the aggravating or mitigating circumstances which will be important in the event of a conviction, namely the decision that falls to the judge as to the sentence to be imposed. Only in very rare circumstances should the jury be asked questions supplementary to the verdict (one example being whether manslaughter has been proved as an involuntary act, by reason of diminished responsibility or because of loss of control). 3. After a trial, therefore, once the offence has been proved, in order to do justice, the judge has to determine the gravity of the offending and is both entitled and required to reach his or her own

2 assessment of the facts, deciding what evidence to accept and what to reject. The conclusions must be clear and unambiguous not least so that both the offender and the wider public will know the facts which have formed the basis for the sentencing exercise. They also inform this court should the offender seek to appeal the sentence as wrong in principle or manifestly excessive, or the Attorney General seek to refer it as unduly lenient. 4. The position is no different when an offender pleads guilty. The admission comprised within the guilty plea is to the offence and not necessarily to all the facts or inferences for which the prosecution contend. Once again, however, the responsibility for determining the facts which inform the assessment of the sentence is that of the judge. In the normal course, when the contrary is not suggested, that assessment will be based on the prosecution facts as disclosed by the statements. If, however, the offender seeks to challenge that account, the onus is on him to do so and to identify the areas of dispute in writing, first with the prosecution and then with the court. 5. The proper approach of the prosecution to bases of plea was considered in R v Tolera [1999] 1 Cr App R 29 and is now set out in the Attorney General s Guidelines on the Acceptance of Pleas and the Prosecutor s Role in the Sentencing Exercise (issued with effect from 1 December 2009). In so far as it deals with the position of the defendant and the court, it can be summarised in this way: i) A basis of plea must not be agreed on a misleading or untrue set of facts and must take proper account of the victim s interests; in cases involving multiple defendants, the bases of plea for each defendant must be factually consistent with each other (see para C1). ii) The written basis of plea must be scrutinised by the prosecution with great care. If a defendant seeks to mitigate on the basis of assertions of fact outside the prosecutor s knowledge (for example as to his state of mind), the judge should be invited not to accept this version unless given on oath and tested in cross examination as set out in IV of the Consolidated Criminal Practice Directions (CCPD): see para. C3. If evidence is not given in this way, then the judge might draw such inferences as he thought fit from that fact. iii) The prosecution advocate must ensure that the defence advocate is aware of the basis on which the plea is accepted and the way in which the case will be opened (para. C5). Where a basis of plea is agreed, having been reduced into writing and signed by advocates for both sides, it should be submitted to the judge prior to the opening. It should not contain matters that are in dispute: see R v Underwood [2005] 1 Cr App R 13 replicated in CCPD IV.45.11(c) and (d). If it is not agreed, the basis of plea should be set out in writing identifying what is in issue; if the court decides that the dispute is material to sentence, it may direct further representations or evidence in accordance with the principles set out in R v Newton (1982) 77 Cr App R 13. iv) Both sides must ensure that the judge is aware of any discrepancy between the basis of plea and the prosecution case that could potentially have a significant effect on sentence so that consideration can be given to holding a Newton hearing. Even where the basis of plea is agreed between the prosecution and the defence, the judge is not bound by such agreement: see paras. C8 and C10, CPR IV and Underwood (ibid). But if the judge is minded not to accept the basis of plea in a case where that may affect sentence, he should say so. 6. Without seeking to be exhaustive of the issues that might arise (or citing all the relevant authorities), there is no obligation to hold a Newton hearing (a) if the difference between the two versions of fact is immaterial to sentence (in which event the defendant s version must be adopted: R

3 v Hall (1984) 6 Cr App R (S) 321; (b) where the defence version can be described as manifestly false or wholly implausible : R v Hawkins (1985) Cr App R (S) 351; or (c) where the matters put forward by the defendant do not contradict the prosecution case but constitute extraneous mitigation where the court is not bound to accept the truth of the matters put forward whether or not they are challenged by the prosecution: R v Broderick (1994) 15 Cr App R (S) A Newton hearing need not be a lengthy affair... Given the risk that credit for a guilty plea will be reduced if there is an adverse Newton finding (see R v Caley & other cases [2012] EWCA Crim 2821 at paras. 26 and 27), advancing a spurious basis of plea will require careful consideration. At the conclusion of any such hearing, in order to meet the requirements of the defendant and the wider public, the judge should provide a reasoned decision as to his findings of fact and thereafter, following mitigation, proceed to sentence. 8. After conviction following a trial, the judge is bound to honour the verdicts of the jury but, provided he does so, is entitled to form his own view of the facts in the light of the evidence. This is so even if the jury express an opinion on a matter going only to sentence: see R v Mills [2004] 1 Cr App R (S) 332. In R v McGlade (1990) 12 Cr App R (S) 105, Lord Taylor CJ put the general proposition in this way (at 109): There is clear authority that if the verdict of a jury leads inexorably to one version of the facts being found and only one version, the learned judge is bound to sentence upon that basis. But if the verdict of a jury leaves open some important issue which may affect sentence, then the learned judge, having heard all the evidence himself in the course of the trial, is free and, indeed, it is his duty to come to a conclusion, if he can, upon where the truth lies. 9. That is not to say that a Newton hearing is never appropriate after a trial. If an issue not relevant to guilt but relevant to sentence has not been canvassed in the trial, a further hearing may be necessary. In R v Finch (1993) 14 Cr App R (S) 226, the defendant alleged that he had been enticed into carrying drugs by a police officer and the judge made it clear that, even if it were the case, it would not constitute a defence. In fact, neither that officer nor the defendant gave evidence so, as the court observed, there was no evidence one way or the other although if there had been, then of course there would have been no need for a Newton style enquiry (per Lloyd LJ at 228). 10. Following well established principles, this court will not interfere with a finding of fact made either following a trial (R v Wood (1992) 13 Cr App R (S) 207) or a Newton hearing (R v Ahmed (1984) 6 Cr App R (S) 391) provided that the judge has properly directed himself or, exceptionally, where the court is satisfied that no reasonable finder of fact could have reached that conclusion. It follows, therefore, that it is important for all involved in the exercise to ensure that it is conducted correctly and in accordance with principle Chapter : Keeping sentencing options open (pp ) In Nicholas v Chester Magistrates Court [2009] EWHC 1504 (Admin); (2009) 173 JP 542, Wilkie J (at [10]) referred to R (White) v Barking Magistrates Court [2004] EWHC 417 (Admin) and R (Sumner) v Wirral Borough Magistrates Court [2005] EWHC 3166 (Admin), which dealt with the situation where

4 one bench gave a certain indication (an indication of willingness to accept jurisdiction as to sentence rather than commit to the Crown Court) which was subsequently superseded by a different bench which committed the cases to the Crown Court. His Lordship summarised the effect of those cases as deciding that: no judicial review would lie on the basis of legitimate expectation if the legitimate expectation was founded on a decision of a bench which was so unreasonable as to be perverse or such that no reasonable bench properly directing itself could have reached. In Thornton v CPS [2010] EWHC 346 (Admin); (2010) 174 JP 121, the court again considered the question of legitimate expectation. Aikens LJ cited the case of R v Nottingham Magistrates' Court, ex p Davidson [2001] Cr App R(S) 167, where Lord Bingham CJ (at p 169), set out the following principle: If a court at a preliminary stage of the sentencing process gives to a defendant any indication as to the sentence which will or will not be thereafter passed upon him, in terms sufficiently unqualified to found a legitimate expectation in the mind of the defendant that any court which later passes sentence upon him will act in accordance with the indication given, and if on a later occasion a court, without reasons which justify departure from the earlier indication, and whether or not it is aware of that indication, passes a sentence inconsistent with, and more severe than, the sentence indicated, the court will ordinarily feel obliged, however reluctantly, to adjust the sentence passed so as to bring it into line with that indicated. At [48], Aikens LJ endorsed what Wilkie J said (at [13]) in his judgment in Nicholas v Chester Magistrates' Court: We thoroughly deprecate the practice, if such it be, of one bench to adjourn sentencing for reports and in so doing giving an indication as to the type of sentence which it would be appropriate to pass where that bench is not reserving sentence to itself. By so doing, as is indicated in the authorities, and save in an exceptional case, the effect of that is to fetter the discretion of the sentencing court. In our judgment, that should only be done where the bench reserves to itself the sentence, or in a case where it is absolutely obvious that a certain type of sentence should be considered or should not be considered. At [49], his Lordship added that:... it is imperative that magistrates do not put themselves in a position which binds the hands of another bench on the question of sentence unless they are absolutely certain that it is the right course to take. Forms can be used, and forms of words used, to ensure that no expectation about

5 sentence, legitimate or otherwise, is engendered in the mind of defendants or their advisers. If those forms and words are used correctly, then unnecessary and expensive expeditions to this court will be avoided. Sentencing Council for England and Wales 118(1) of the Coroners and Justice Act 2009 provides that 'there is to be a Sentencing Council for England and Wales'. The new Sentencing Council replaces the Sentencing Guidelines Council and the Sentencing Advisory Panel, both of which are abolished by s 135 of the 2009 Act. The membership of the Council is set out in Sch 15. Para 1 of that schedule provides that the Council is to consist of 8 'judicial members' (drawn from the ranks of Court of Appeal judges, High Court judges, Circuit judges, District Judges (Magistrates' Courts) and lay justices, and appointed by the Lord Chief Justice with the agreement of the Lord Chancellor, and 6 'judicial members', appointed by the Lord Chancellor with the agreement of the Lord Chief Justice. Under para 2, the Council must be chaired by a judicial member. By virtue of para 3(2), the judicial members must include at least one Circuit judge, one District Judge (Magistrates Courts) and one lay justice. Under para 4, a person is eligible for appointment as a non-judicial member if he has experience of criminal defence, criminal prosecution, policing, sentencing policy and the administration of justice, the promotion of the welfare of victims of crime, academic study or research relating to criminal law or criminology, the use of statistics, or the rehabilitation of offenders. Para 5 provides that the Lord Chief Justice is to have the title of President of the Sentencing Council but is not a member of the Council. Under para 6, the Lord Chancellor may appoint a person with experience of sentencing policy to attend and speak at any meeting of the Council. Section 120 makes provision for 'sentencing guidelines', which may be 'general in nature or limited to a particular offence, particular category of offence or particular category of offender' (subs (2)). Under s 120(3), the Council is specifically required to prepare sentencing guidelines about the discharge of a court s duty under s 144 of the Criminal Justice Act 2003 (reduction in sentences for guilty pleas), and sentencing guidelines about the application of any rule of law as to the totality of sentences. Under s 120(4), the Council may prepare sentencing guidelines about any other matter. Guidelines must be published in draft (subs (5)) and there must be a consultation exercise (subs (6)). Under subs (9), the Council may review the sentencing guidelines and revise them. Section 120(11) requires the Council to have regard to:

6 (a) the sentences imposed by courts in England and Wales for offences; (b) the need to promote consistency in sentencing; (c) the impact of sentencing decisions on victims of offences; (d) the need to promote public confidence in the criminal justice system; (e) the cost of different sentences and their relative effectiveness in preventing re-offending; (f) the results of the monitoring carried out under s 128. Section 121 requires the Council to have regard to the desirability of sentencing guidelines which relate to a particular offence being structured thus: (2) The guidelines should, if reasonably practicable given the nature of the offence, describe, by reference to one or more of the factors mentioned in subs (3), different categories of case involving the commission of the offence which illustrate in general terms the varying degrees of seriousness with which the offence may be committed. (3) Those factors are (a) (b) (c) the offender s culpability in committing the offence; the harm caused, or intended to be caused or which might foreseeably have been caused, by the offence; such other factors as the Council considers to be particularly relevant to the seriousness of the offence in question. (4) The guidelines should (a) specify the range of sentences ( the offence range ) which, in the opinion of the Council, it may be appropriate for a court to impose on an offender convicted of that offence, and (b) if the guidelines describe different categories of case in accordance with subs (2), specify for each category the range of sentences ( the category range ) within the offence range which, in the opinion of the Council, it may be appropriate for a court to impose on an offender in a case which falls within the category. (5) The guidelines should also (a) specify the sentencing starting point in the offence range, or (b) if the guidelines describe different categories of case in accordance with subs (2), specify the sentencing starting point in the offence range for each of those categories. (6) The guidelines should (a) (to the extent not already taken into account by categories of case described in accordance with subs (2)) list any aggravating or mitigating factors which, by virtue of any enactment or other rule of law, the court is required to take into account when considering the seriousness of the offence and any other aggravating or mitigating factors which the Council considers are relevant to such a consideration,

7 (b) (c) list any other mitigating factors which the Council considers are relevant in mitigation of sentence for the offence, and include criteria, and provide guidance, for determining the weight to be given to previous convictions of the offender and such of the other factors within paragraph (a) or (b) as the Council considers to be of particular significance in relation to the offence or the offender. (7) For the purposes of subs (6)(b) the following are to be disregarded (a) (b) (c) the requirements of s 144 of the Criminal Justice Act 2003 (reduction in sentences for guilty pleas); ss 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence; any rule of law as to the totality of sentences. (8) The provision made in accordance with subs (6)(c) should be framed in such manner as the Council considers most appropriate for the purpose of assisting the court, when sentencing an offender for the offence, to determine the appropriate sentence within the offence range. (9) The provision made in accordance with subs (2) to (8) may be different for different circumstances or cases involving the offence. (10) The sentencing starting point in the offence range (a) for a category of case described in the guidelines in accordance with subs (2), is the sentence within that range which the Council considers to be the appropriate starting point for cases within that category (i) (ii) before taking account of the factors mentioned in subs (6), and assuming the offender has pleaded not guilty, and (b) where the guidelines do not describe categories of case in accordance with subs (2), is the sentence within that range which the Council considers to be the appropriate starting point for the offence (i) (ii) before taking account of the factors mentioned in subs (6), and assuming the offender has pleaded not guilty. Section 122 makes provision for 'allocation guidelines' (relating to mode of trial decisions by magistrates courts under s 19 of the Magistrates Courts Act 1980 or by the Crown Court under paragraph 7(7) or 8(2)(d) of Schedule 3 to the Crime and Disorder Act Under s 122(2), the Council 'may prepare allocation guidelines'. Such guidelines must first be published in draft (subs (3). There must then be a consultation process (subs (4)). Published definitive guidelines may be revised

8 (subs (6)). Under s 122(8), the Council must have regard to the need to promote consistency in mode of trial decisions and to the results of monitoring carried out under s 128. Section 123 applies where the Council decides to prepare or revise sentencing guidelines or allocation guidelines, and is of the opinion that the urgency of the case makes it impractical to comply with the usual procedural requirements. In such a case, the Council may prepare or revise the guidelines without publishing a draft first and consulting only with the Lord Chancellor. Under s 124(1), the Lord Chancellor may propose that the Council should prepare or revise sentencing or allocation guidelines. Section 124(3) empowers the Court of Appeal to propose that the Council should prepare or revise sentencing guidelines. If the Council receives a proposal under subs (1) or (3) to prepare or revise any guidelines, it must consider whether to do so (subs (5)). Subs (8) makes it clear that the power of the Court of Appeal to propose that the Council should consider making or revising sentencing guidelines is 'without prejudice to any power of the appeal court to provide guidance relating to the sentencing of offenders in a judgment of the court'. Section 125 deals with the effect of sentencing guidelines: (1) Every court (a) (b) must, in sentencing an offender, follow any sentencing guidelines which are relevant to the offender s case, and must, in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice to do so. (2) Subs (3) and (4) apply where (a) (b) a court is deciding what sentence to impose on a person ( P ) who is guilty of an offence, and sentencing guidelines have been issued in relation to that offence which are structured in the way described in s 121(2) to (5) ( the offence specific guidelines ). (3) The duty imposed on a court by subs (1)(a) to follow any sentencing guidelines which are relevant to the offender s case includes (a) in all cases, a duty to impose on P, in accordance with the offence specific guidelines, a sentence which is within the offence range, and

9 (b) where the offence-specific guidelines describe categories of case in accordance with s 121(2), a duty to decide which of the categories most resembles P s case in order to identify the sentencing starting point in the offence range; but nothing in this section imposes on the court a separate duty, in a case within para (b), to impose a sentence which is within the category range. (4) Subs (3)(b) does not apply if the court is of the opinion that, for the purpose of identifying the sentence within the offence range which is the appropriate starting point, none of the categories sufficiently resembles P s case. (5) Subs (3)(a) is subject to (a) (b) (c) s 144 of the Criminal Justice Act 2003 (reduction in sentences for guilty pleas), s 73 and 74 of the Serious Organised Crime and Police Act 2005 (assistance by defendants: reduction or review of sentence) and any other rule of law by virtue of which an offender may receive a discounted sentence in consequence of assistance given (or offered to be given) by the offender to the prosecutor or investigator of an offence, and any rule of law as to the totality of sentences. (6) The duty imposed by subs (1) is subject to the following provisions (a) (b) (c) (d) (e) s 148(1) and (2) of the Criminal Justice Act 2003 (restrictions on imposing community sentences); s 152 of that Act (restrictions on imposing discretionary custodial sentences); s 153 of that Act (custodial sentence must be for shortest term commensurate with seriousness of offence); s 164(2) of that Act (fine must reflect seriousness of offence); s 269 of and Schedule 21 to that Act (determination of minimum term in relation to mandatory life sentence); (f) s 51A of the Firearms Act 1968 (minimum sentence for certain offences under s 5 etc); (g) ss 110(2) and 111(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (minimum sentences for certain drug trafficking and burglary offences); (h) s 29(4) and (6) of the Violent Crime Reduction Act 2006 (minimum sentences for certain offences involving firearms)....

10 Section 126 stipulates that s 125(3) is subject to the court's power to impose a sentence of imprisonment or detention for public protection under ss 225(3) or 226(3) of the Criminal Justice Act 2003, and to the power to impose and an extended sentence of imprisonment or detention under ss 227 or 228 of the 2003 Act. However, where a court determines the notional determinate term in such cases, ss 125(2)-(5) apply for the purposes of determining that notional determinate term (s 126(3)). Section 127 requires the Council to publish a 'resource assessment' in respect of the guidelines it issues. Under subs (3), a resource assessment is an assessment of the likely effect of the guidelines on: (a) the resources required for the provision of prison places, (b) the resources required for probation provision, and (c) the resources required for the provision of youth justice services. Under subs (5), the Council must keep under review any resource assessment that has been published and, if the assessment is found to be inaccurate, publish a revised resource assessment. Section 128 requires the Council to: (a) monitor the operation and effect of its sentencing guidelines, and (b) consider what conclusions can be drawn from the information obtained by virtue of paragraph (a). Under s 128(2), the Council must discharge its duty to monitor with a view to drawing conclusions about (a) the frequency with which, and extent to which, courts depart from sentencing guidelines; (b) the factors which influence the sentences imposed by courts; (c) the effect of the guidelines on the promotion of consistency in sentencing; (d) the effect of the guidelines on the promotion of public confidence in the criminal justice system. Under s 129(1), The Council must publish, at such intervals as it considers appropriate (a) in relation to each local justice area, information regarding the sentencing practice of the magistrates courts acting in that area, and

11 (b) in relation to each location at which the Crown Court sits, information regarding the sentencing practice of the Crown Court when it sits at that location. Section 129(2) empowers the Council to: promote awareness of matters relating to the sentencing of offenders by courts in England and Wales, including, in particular (a) (b) (c) the sentences imposed by courts in England and Wales; the cost of different sentences and their relative effectiveness in preventing re-offending; the operation and effect of guidelines [issued under the Act]. Section 119 requires the Council to publish an annual report. One of the matters that has to be included (by virtue of s 130) is a 'sentencing factors report'. This is an assessment of the effect which any changes in the sentencing practice of courts are having or are likely to have on each of the following (a) (b) (c) the resources required for the provision of prison places; the resources required for probation provision; the resources required for the provision of youth justice services. Under s 131, the annual report must also contain a 'non-sentencing factors report'. This is a report of 'any significant quantitative effect (or any significant change in quantitative effect) which nonsentencing factors are having or are likely to have on the resources needed or available for giving effect to sentences imposed by courts in England and Wales'. Under subs (4), non-sentencing factors are factors which do not relate to the sentencing practice of the courts, and include: (a) the recalling of persons to prison; (b) breaches of orders within subs (5) [namely community orders, suspended sentence orders and youth rehabilitation orders]; (c) patterns of re-offending; (d) decisions or recommendations for release made by the Parole Board; (e) the early release under discretionary powers of persons detained in prison; (f) the remanding of persons in custody.

12 Under s 132, the Lord Chancellor may refer to the Council any government policy proposal, or government proposal for legislation, so that the Council can assess the likely effect of the proposal on (a) the resources required for the provision of prison places; (b) the resources required for probation provision; (c) the resources required for the provision of youth justice services. In R v Healey [2012] EWCA Crim 1005, the Court of Appeal emphasised the importance of following the Sentencing Council s guidelines. Hughes LJ said: 4. There are inevitably bound to be different views from time to time about the general level of sentencing. In some fields there is a level of public debate at least about parts of it. That may or it may not be one of the reasons why Parliament elected to create the Sentencing Council as an independent body to take an overview of sentencing and to publish guidelines. At all events Parliament did so. The Sentencing Council receives a very wide range of information, statistical data, research and opinion, both lay and professional. The collection of information available to it is far wider than the members of this court, individually or collectively, or individual sentencers, can hope to have. The Council also engages in a comprehensive consultation programme before it publishes any guideline, frequently with the publication of one, or sometimes a succession, of drafts for discussion. That process frequently involves - and it did in this case - extensive testing of commonly encountered scenarios upon experienced sentencers, namely Crown Court judges and district judges. 5. There is deliberately built in to the guidelines issued by the Sentencing Council a good deal of flexibility, as we shall in a moment demonstrate. The flexibility available to Crown Court judges is appreciable. It does not, however, extend to deliberately disregarding the guidelines, not on the grounds that the case has particular facts which warrant distinguishing it from the general level, but because the judge happens to take a different view about where the general level ought to be. The latter approach is demonstrably unlawful. It would remove all point from the issuing of any guidelines at all but such guidelines are required by the Coroners and Justice Act It would also, for that matter, equally rob of any point guidelines contained in a decision of this court. Indeed, such approach amounts to frank disobedience of the statute. That provides in s 125(1) of the Coroners and Justice Act 2009 that the court: "... must follow... any sentencing guidelines which are relevant to the offender's case... unless satisfied that it would be contrary to the interests of justice to do so." In the end, that kind of approach, if adopted, would also be contrary to the rule of law to which all judges are committed. Very few judges are fortunate enough to go through life without encountering rare occasions when they would prefer the law to be otherwise to that which it is. The judge's duty is

13 nevertheless to apply it, whether at first instance or in this court, just as it is the duty of the citizen to obey the law whether he happens to agree with it or not The format which is adopted by the Sentencing Council in producing its guidelines is to present the broad categories of offence frequently encountered pictorially in boxes. That is perhaps convenient, especially since it is necessary to condense the presentation as much as possible and to avoid discursive narrative on so wide a range of offending. It may be that the pictorial boxes which are part of the presentation may lead a superficial reader to think that adjacent boxes are mutually exclusive, one of the other. They are not. There is an inevitable overlap between the scenarios which are described in adjacent boxes. In real life offending is found on a sliding scale of gravity with few hard lines. The guidelines set out to describe such sliding scales and graduations. We wholeheartedly endorse the approach of... counsel for one of these defendants..., who asked us to find that a particular case was to be located on examination somewhere between two of the pictorial boxes. Chapter : Sentencing Guidelines: seriousness (pp ) In R v Tongue and Doyle [2007] EWCA Crim 561, the Court noted that, once relevant guidelines have been issued by the Sentencing Guidelines Council, it should be the exception rather than the rule for advocates to cite previous cases (i.e. cases which pre-date the Guidelines). The guidelines of the Council are generally more pertinent. Chapter : Sentencing discount for guilty pleas (pp ) In R v Cundell [2008] EWCA Crim 1420, Burnett J (at [16] and [17]) said: As is well known, the maximum discount of one-third is usually available in circumstances where a defendant in criminal proceedings accepts his guilt at the earliest opportunity. That may be at the first hearing before the Magistrates' Court, but it is well recognised that the earliest reasonable opportunity may come rather sooner. Thus there may be cases where the earliest reasonable opportunity to accept guilt may be when interviewed by the police. In the present case, the accused pleaded guilty at the PCMH in the Crown Court but had not indicated a guilty plea at the 'plea before venue' hearing in the magistrates' court. The Court held that a discount of about 25% would have been reasonable in the circumstances.

14 The importance of following the guidelines on the discount for pleading guilty was emphasised by the Court of Appeal in R v Ladlow [2011] EWCA Crim The judge had given full discount even though the pleas were entered on the date fixed for the trial. Davis LJ said (at [34])... It is most important that, so far as possible, consistency is maintained throughout the Crown Courts in England and Wales in this area. Indeed, those defendants who do plead guilty at the first reasonable opportunity and duly get the full discount may feel no real incentive to plead at an early stage if there is to become a perception that a plea even at the date of trial may attract a full discount, as happened here. Moreover, such an approach, if adopted, can give rise to real difficulties and perceptions of unfairness particularly where there are a number of co-accused, some of whom may plead at differing stages in the proceedings. His Lordship added (at [35]) that, to give full discount for a late plea goes against a principal rationale of the Sentencing Guidelines, which is to encourage pleas at the earliest possible moment... It can only tend to ratchet up costs and to undermine the overall rationale of the guidelines if defendants are encouraged to take their chances up until the door of the court. Shortly put, a late plea is better than a trial but it is not as good as an early plea. His Lordship noted (at [36]) that there are cases (such as complex fraud or conspiracy cases) where the prosecution evidence as served is not complete by the time of the plea and case management hearing; in such cases, the possibility of full credit for a guilty plea may properly be kept open for a period of time. However, his Lordship found it difficult to envisage cases in which (in the absence of a change of circumstances such as, for example, the willingness of the prosecution at the door of the court to accept a plea to a lesser or alternative count) maximum credit for a plea can properly be given where a plea is only first tendered on the day fixed for trial. Giving credit for a guilty plea where the prosecution case is overwhelming was considered in R v Wilson [2012] EWCA Crim 386. Lord Judge CJ said (at [27]): On the face of it, even in the context of an overwhelming case, the starting point is the full reduction. Where a lesser reduction is considered appropriate, the recommendation is 20%, not as a mathematical calculation but as an indication of the likely level of reduction if the guilty plea has been indicated at the first available opportunity. His Lordship added (at [28]) that, even in an overwhelming case, the guilty plea has a distinct public benefit. The earlier that it is indicated, the better for everyone. His Lordship also emphasised (at

15 32]) the value to the victims of crime and the administration of justice of an early indication that the defendant does not require the issues to be tried. In R v Thompson [2012] EWCA Crim 1431, Silber J (at [25]) said that court had to stress how important it is for a judge carrying out a sentencing exercise to carry out the exercise that ascertains whether or not the plea was in fact entered at the first reasonable opportunity. It cannot be an invariable rule that that must be when the defendant is interviewed at the police station, because in many cases that will be at a later time depending on when documents have been served and a number of other factors. Further guidance on discount for guilty pleas was given in R v Chaytors [2012] EWCA Crim Royce J, giving the judgement of the Court of Appeal, said (at [16]): In our experience is often the case that judges make it clear that there should be no assumption that a plea at the plea and case management hearing will attract a one-third discount and they apply within the guideline a lesser discount on the basis that the first reasonable opportunity was earlier. That is an entirely proper approach and it should encourage early indications of willingness to plead, with all the consequential savings of cost and time... His Lordship added (at [19]):... In an increasing number of court centres now there is an early guilty plea scheme where early guilty plea hearings take place. In those centres there are practice guidance notes making it clear that there is a presumption that only a 25 per cent discount will be given if a guilty plea is entered at the plea and case management hearing rather than earlier... [A]s this scheme develops around the country it will be increasingly difficult to maintain that a plea at the plea and case management hearing is the first reasonable opportunity. In R v Caley [2012] EWCA Crim 2821, the Court of Appeal gave detailed guidance on the discount for pleading guilty. Hughes LJ, giving the judgement of the Court, started by quoting s 144 of the Criminal Justice Act 2003, and went on to say (at [3]) that, the statute refers to the defendant "indicating his intention" to plead guilty, not to his being arraigned and actually entering such a plea. By definition, the latter will often be at a later convenient opportunity in the court timetable. His Lordship then quoted from para 2.2 of the SGC Guideline on Guilty Pleas and went on (at [5]-[8]) to consider the rationale for giving a discount for guilty pleas:

16 In order of importance, plainly the first is the benefit for victims and witnesses. The impact of crime on its victims can be enormous or slight, but whether it is large or small the knowledge that a defendant has accepted his guilt and that punishment will follow normally reduces that impact substantially and thus brings significant benefit to the victim. It is generally worse for the victim when the offender, although guilty, is defiant. The same applies to the impact on those who may have to give evidence; they include, but are not confined to, the victim. A few may relish it, or think that they will, but for most the process is normally stressful and often unavoidably uncomfortable. Moreover the anticipation may often be painful, sometimes even more than the actuality. For both victims and witnesses the benefit from a plea of guilty remains even when it comes late, but generally speaking the later it is the less the benefit. The second major reason for the practice is a more pragmatic one but it is nevertheless vital in the public interest. The expenditure in public time and money on trials and on preparation for trials is considerable. The case must be thoroughly prepared so that the exacting standard of proof rightly required in a criminal case can be met. Further investigation is likely to be necessary, as may the assembly of a good deal more evidence, lay and expert. Such steps are necessary, but expensive. They are avoided or much reduced by an admission of guilt. The public's limited resources can then be concentrated on those cases where a trial will really be necessary, and such cases will not be delayed, often with accused persons in custody. At present something of the order of 75% of all Crown Court cases result in pleas of guilty; if in all those cases the defendants were out of defiance or otherwise to insist on each detail of the case being proved to the hilt the administration of criminal justice would be in danger of collapse. As the SGC's statement of purpose makes clear, a plea of guilty may of course be an indication of remorse for the offence, but it may not be and the two things are not the same. A defendant may indeed regret his offence, and, beyond that, it may be clear that he wishes to avoid doing it again. Equally, however, he may plead guilty not because he regrets committing the crime but simply because he does not see a way of avoiding the consequences. The benefits which we have described which come from a defendant who is guilty admitting that he is so remain present if it is a case of the latter type. Moreover, it accords with elementary instincts of justice to recognise the difference between two defendants, one of whom is defiant and requires the public to prove every dot and comma of the case against him and the other of whom accepts his guilt. The well-established mechanism by which this is done is by reducing the sentence which would have been imposed after a trial by a proportion, on a sliding scale depending on when the plea of guilty was indicated. The largest reduction is of about one third, and is to be accorded, under the wellestablished practice and the SGC Guideline, to defendants who indicate their plea of guilty at the "first reasonable opportunity". Thereafter the proportionate reduction diminishes. A plea of guilty at the door of the trial court will still attract some reduction, but it is likely to be of the order of one tenth. Hughes LJ then went on to address a number of specific issues.

17 "First reasonable opportunity" His Lordship observed (at [9]) that the SGC Guideline rightly makes it clear that the question of when the defendant's first reasonable opportunity arose is a matter for the sentencing judge. Individual cases may call for individual decisions about this. But it is obviously desirable for there to be a baseline of broadly consistent approach if justice is to be done between different offenders, in all parts of the country. Equally such consistency is necessary if proper advice is to be given to accused persons. The Court agreed (at [12]) with counsel for the Crown that it would not be appropriate to say that the first reasonable opportunity normally arises in police interview, since this might have implications for the terms of the caution and for other rules of practice about how interviews are conducted. Moreover, at the interview stage, although the factual allegation will normally be made, the charge will generally not have been formulated. However, Hughes LJ went on (at [13]-[14]): It does not of course follow that it is irrelevant to sentence if a defendant frankly admits in police interview what he did. Far from it. The defendant who does so will have additional mitigation which should normally be recognised in sentencing. Its impact on sentence will of course vary according to circumstances. At one end of the scale, the defendant who volunteers an admission when the police could not have brought the allegation home (and occasionally when they did not even know about it) usually has a great deal of mitigation. So has the defendant who, by admitting what he did, spares others who would otherwise have come under suspicion. At the other end of the scale, the defendant who is confronted with evidence which is in practice unanswerable has little, although some, mitigation. The right way for courts to deal with admissions in interview is not, however, by treating them as essential in every case to according the maximum one-third reduction for guilty plea. Rather, the variable circumstances of such admissions are best dealt with not by percentage adjustments prescribed in advance but by recognising them as a factor tending towards downwards adjustment to the sentence passed, to be assessed in the ordinary way by the judge along with other aggravating and mitigating factors, but before adjustment for plea of guilty. There is sometimes confusion in argument between (i) the first reasonable opportunity for the defendant to indicate his guilt and (ii) the opportunity for his lawyers to assess the strength of the case against him and to advise him on it. It is obvious that the second depends on the evidence being assembled and served. The first, however, frequently does not. There will certainly be cases where a defendant genuinely does not know whether he is guilty or not and needs advice and/or sight of the evidence in order to decide. We do not attempt to define them, and they do not arise in the present appeals. They might however include cases where even if the facts are known there is a need for legal advice as to whether an offence is constituted by them, or cases where a defendant genuinely has no

18 recollection of events. There may be other cases in which a defendant cannot reasonably be expected to make any admission until he and his advisers have seen at least some of the evidence. Such cases aside, however, whilst it is perfectly proper for a defendant to require advice from his lawyers on the strength of the evidence (just as he is perfectly entitled to insist on putting the Crown to proof at trial), he does not require it in order to know whether he is guilty or not; he requires it in order to assess the prospects of conviction or acquittal, which is different. Moreover, even though a defendant may need advice on which charge he ought to plead guilty to, there is often no reason why uncertainty about this should inhibit him from admitting, if it is true, what acts he did. If he does so, normally the public benefits to which we have referred will flow. His Lordship went on (at [16]) to consider case management initiatives increasingly taken by Crown Courts, often referred to as "Early Guilty Plea" schemes: By this, we do not mean individual sentencing practices of one or more judges but, rather, formally adopted local schemes, publicly stated and usually following discussions as to practicalities with local practitioners, both prosecuting and defending. Whilst these schemes vary in detail, the principle is that the parties are encouraged to give active early consideration, either (under some schemes) at the Magistrates' Court or (under others) immediately the case arrives in the Crown Court, to whether it is likely to be disposed of by plea of guilty or by trial. If the former, a prompt hearing is set up, with the necessary pre-sentence report available, so that the plea can be taken and sentence passed, all at a single hearing. If the latter, the case will be listed for plea and case management, that is for arraignment and trial planning. Thus under these schemes, at the latest by the time the case arrives in the Crown Court, the defendant is given a formal opportunity through his solicitors or counsel to notify his intention to admit the offence and/or to ask for prompt listing for arraignment and sentence. Even without such formal schemes, every defendant has in fact the opportunity in every Crown Court to give such an indication. These various procedures all serve a similar end. They aim to advance the point at which everyone can know whether a trial is going to take place or not. The sooner this is done the greater the advantage for the victim and witnesses. The sooner this is done the greater the public saving in preparation of trial-ready evidence by the Crown and in successive Crown Court hearings. The point at which there is, in practice, great saving in the assembly and service of evidence, and in the investigation and making of disclosure, is if and when an indication of a guilty plea is given either in the Magistrates' Court or immediately on arrival in the Crown Court. The practice of local CPS branches as to the level of preparation for a case leaving the Magistrates' Court may well vary, and this may well underlie some of the variations in locally hammered-out formal schemes. But by the time of a plea and case management hearing a complete or nearly complete trial file of evidence should normally have been prepared, even if scientific evidence may often be still to come and there may be other evidence which becomes necessary when once the issues are defined for trial. There are undoubtedly considerable savings still to be made if a plea of guilty is tendered on arraignment at such a hearing, but they are normally significantly less than can be achieved if an earlier indication is given.

19 These considerations led the Court to the conclusion (at [18]-[21]) that the first reasonable opportunity for the defendant to indicate a plea of guilty is not the PCMH. Rather: The first reasonable opportunity is normally either at the Magistrates' Court or immediately on arrival in the Crown Court whether at a preliminary hearing or by way of a locally-approved system for indicating plea through his solicitors. There will, we think, ordinarily be some, but limited, difference in public benefits between the two stages of the Magistrates' Court and the first arrival in the Crown Court, but for practical purposes either can properly, we think, ordinarily attract the maximum percentage reduction (one third) provided for by the SGC Guidelines. Properly promulgated local schemes which provide for either appear to be working, may well reflect local variations in the preparation of files for committal or sending, and do not, we think, need at present to be disturbed. However, the possibility adverted to in Annex 1 of the Guideline that an indication at the Magistrates' Court might attract a reduction of 33% and an indication at the first Crown Court hearing 30% is not, we think, generally reflected in practice as experience has developed it over the years, and, given the minimal distinction, is likely to be an unlooked-for complication. A plea of guilty at a plea and case management hearing will ordinarily not be significantly different from a plea notified shortly after it. Whatever the exact procedure in different courts for fixing trial windows or trial dates this is clearly the stage at which the Guideline contemplates a reduction of about a quarter. By 'indicate plea of guilty' we mean to include the case where, either in the magistrates' court or at or soon after arrival in the Crown Court, the defendant through counsel or solicitors notifies the Crown that he would admit a lesser charge or invites discussion as to the appropriate charge, at any rate where the position taken up is a reasonable one. The same may be true, where a formal local scheme does not operate, of a considered indication to the court that a trial is unlikely, so long as realistic and prompt discussions with the Crown then take place. Ordinarily these kinds of indication will bring similar public benefits to those which we have described. We recognise that this may well mean that advocates at the Magistrates' Court must be equipped to explain to the defendant the practice relating to reduction for pleas of guilty, and that the trial advocate may well need to be instructed earlier than used in years past to be the practice. This is a matter for the parties and their advisers, but to the extent to which these things are wise and necessary they ought already to be the trend. "Overwhelming case" Hughes LJ referred (at [24]) to R v Wilson [2012] EWCA Crim 386, where Lord Judge CJ had said [29] and [31]: