Common sense often masks a woeful ignorance of the facts and of the consequences of what is being advocated

Professor Lee Bridges
Tuesday, 30 November 2010

Louise Casey - newly reincarnated as Commissioner for Victims and Witnesses at a reported salary of £100k per annum - has called for the right of defendants in either ways cases to elect jury trial to be limited or abolished. In doing so, she has revived a proposal first put forward by the Royal Commission on Criminal Justice in the early 1990s, and one that the New Labour Government twice attempted to legislate for, only to be roundly defeated in the House of Lords.

In fact, since the time of the Royal Commission report, the actual use of the right to elect jury trial has dramatically declined, from over 35,000 cases per annum down to only just over 9,000. The figure actually reduced to as little as 5,000 after implementation of the Criminal Justice Act 2003. This was probably the result of two factors.

One was the formalisation, through the Sentencing Guidelines Council, of reductions in sentence for guilty pleas, under which defendants face a penalty for exercising their right to a presumption of innocence and for the State to prove the case against them. This penalty can potentially amount to a 50% longer prison sentence if the defendant is found guilty following a trial - in either the magistrates' court or the Crown Court - than he or she would have received if they entered a guilty plea at first instance. The Coalition Government is currently considering increasing the sentence discount even further, so that a defendant found guilty following trial will receive a sentence twice as long as if pleading guilty at first instance.

The second factor was the transfer of the decision on charge in most cases from the police to the Crown Prosecution Service. Although no detailed research has been done on this, it is likely that this change helped to reduce - but not eliminate - the level of initial charges in some cases. This may have avoided the necessity for defendants to plead not guilty initially in order to ensure that the CPS would seriously re-evaluate the level of charge and even to elect for Crown Court trial so that the CPS decision on charge might be subject to external scrutiny through independent counsel.

Louise Casey, of course, places the blame for late guilty pleas solely on defendants and their lawyers manipulating the system. In much the same way, the Director of Public Prosecutions, Keir Starmer, has pointed to the waste caused by late guilty pleas, without saying in how many such cases the eventual guilty plea is the result of a reduction in charges following a late review of the case by his own lawyers.

Nor does he acknowledge that some late bargaining over charges in order to obtain guilty pleas may be seen as an alternative to dropping the case against the accused altogether. Research done for the Royal Commission found that in nearly a quarter of late guilty pleas in the Crown Court counsel for the prosecution - not the defence - said the defendant would have has a good or fairly good chance of acquittal had the case gone to trial.

In practice, at the point of initial charge, everyone in the system is basing decisions on imperfect information, a situation that is bound to be exacerbated by reductions in both police and CPS resources under the Coalition Government's cuts. The constant pressure to cut delays in the system, including by further increasing the level of sentence discount for early guilty pleas, is likely to result in injustice, with defendants being convicted of more serious charges than are justified or, even worse, of charges which the prosecution would be unlikely to prove at trial.

There may also be injustice for victims in this situation. By definition, offering a substantial reduction in sentence for an early guilty plea means that the accused- and the victim and society as a whole - are not receiving their just desserts. Louise Casey points to the reduction in magistrates' court caseloads, attributing this to more and more `either way' cases going to Crown Court.

In fact, Crown Court caseloads have not increased substantially, and what increase there has been has been mainly due to a sharp rise in the most serious, `indictable only' cases which must be tried at this level. Far more significant is the literally hundreds of thousands of cases, including many either way offences, that are now dealt with not in the magistrates' courts but administratively through fixed penalty notices. Again, many victim groups as well as magistrates have complained about the low level of fines imposed under this system, and some have even expressed concerned that accused who would be likely to be acquitted are opting instead to accept fixed penalty notices in order `to get it over with".

Over 85% of either way cases that do reach the Crown Court are sent there by magistrates, without the defendant having any choice in the matter. Previous research has shown that in most such instances magistrates are following the recommendations of the CPS that the matter is too serious for the magistrates to deal with. However, in over half of such cases where the defendant is eventually convicted, the Crown Court imposes a sentence that would have been within the powers of magistrates to give in the first place.

Again, this may be partially explained by reductions in charges between the magistrates' court and the Crown Court. But Louise Casey proposes that magistrates' sentencing powers should be increased to enable them to deal with more of these cases. The logic of this situation suggests that if this were done, many of the defendants would receive longer sentences from magistrates than they now receive in the Crown Court. What hope of Ken Clarke fulfilling his commitment to reduce the prison population if that were to happen?

Louise Casey says her proposals are based on `common sense'. As we have seen with the Tea Party in the United States, claims of `common sense' often mask a woeful ignorance of the facts and of the consequences of what is being advocated. Nor should championing the rights of victims and witnesses necessitate such ill-informed attacks on defence lawyers and the rights of the accused. If anything, the facts suggest that Louise Casey's ire should be better aimed at the CPS for recommending that so many either way cases are misdirected to the Crown Court by magistrates, and Keir Starmer should be investigating his own lawyers' responsibilities for the high incidence of late guilty pleas in the system.