The Summary Justice Review Committee: REPORT TO MINISTERS
Chapter 14: ENCOURAGING EARLY PLEAS
14.1 According to data held by the Scottish Court Service, in the sheriff courts some 25% of cases that are called to trial plead guilty on the day of the trial. In some courts the percentage is much higher. We do not have equivalent data for the district courts, but have no reason to believe that the percentage so doing would be significantly less. We share the view widely held by those who work within the system that this represents an unacceptable waste of court resources and inconvenience to witnesses and victims. To put this in perspective, 25% of trials means that in something like 16,000 sheriff court cases every year trials are scheduled in busy court diaries where the accused pleads guilty on the day. Assuming an average of about four witnesses per case, around 64,000 people are needlessly called to court. Of these a significant proportion will be police officers.
14.2 We believe that it is possible and practicable to reform the summary criminal justice system so as to increase significantly the percentage of cases which plead guilty without a trial being fixed, or if a trial is fixed, the percentage of cases which plead guilty before the date of the trial. We think that there are four main elements which need to be in place to encourage an accused person who intends to plead guilty to do so at an early stage in proceedings. These elements are:
- that the defence solicitor should have sufficient information made available to allow him or her to advise the accused of the strength of the case against him or her at an early stage;
- that defence solicitors should be properly remunerated for work done at an early stage of a case;
- that there should be an incentive in terms of likely sentence to encourage an early plea; and
- that the accused should have good reason to expect that a trial will go ahead on the appointed day.
14.3 We deal with each of these issues in more detail below. We are of course aware that the system can only do so much to encourage an early plea. There will always be those accused who will wish to put off the day of reckoning to the last moment, particularly if a custodial sentence is a possibility, and there will be those who will hope that something will turn up, for example a witness will not attend. However, if only a partial improvement in the numbers who delay a guilty plea until the last moment can be achieved there is the potential for significant benefits for court resources and witnesses.
Ensuring the Defence has Sufficient Early Information
14.4 One of the principal causes of delay is the relatively late stage in the process at which the defence have sufficient information to reach a conclusion as to what the plea should be. If the accused were to receive a copy of an abbreviated police report or a summary of the evidence with the complaint he or she would be provided with a clear indication of the strength of the case at the earliest possible stage. Solicitors told us that at present they are not in a good position to give advice to their clients when the complaint is served. They see the copy of the complaint served on their client but they are dependent on what their client tells them about the events which led to the charge(s). They have no other source of information at that stage which would enable them to challenge what they are told. Solicitors would welcome an opportunity to be able to give realistic advice to their clients at that stage. In most cases at present solicitors feel obliged to advise clients who do not express a clear wish to plead guilty, or whose account is or may not be consistent with such a plea, to plead not guilty.
14.5 We were told by procurators fiscal and police officers that they would not see any great difficulty in the provision of such a summary, as all of the information would be available in the police report. We are conscious of the need to avoid further form-filling exercises for the police or fiscal and so would envisage that the police report could be adapted so that a discrete part summarising the evidence could be copied or detached and passed to the accused with the complaint. The summary of the evidence served with the complaint might, for example, show that the charge was based on or included the evidence of eye witnesses who could identify the accused, CCTV footage or an admission. If at that stage accused are made aware that they have been seen committing the offence, when they thought they had not been, their willingness to plead guilty would be likely to increase. Such an arrangement appears to be working effectively in the youth court pilot.
We recommend that the prosecution should make available to the defence solicitor sufficient information to allow the latter to advise the accused of the strength of the case against him or her at an early stage of the process. Where the accused is unrepresented the material should be passed directly to him or her.
We recommend that a summary of the evidence is provided to the accused along with the copy of the complaint.
Ensuring Defence Solicitors are Properly Remunerated for Initial Work on a Case.
14.6 The legal aid system, so far as it relates to summary criminal cases, appears to us to contribute to delayed guilty pleas by placing a premium on pleading not guilty. Very briefly, there are two main types of legal aid for those prosecuted in the summary courts in Scotland. One is the Advice By Way Of Representation (ABWOR) scheme which can provide for representation for accused in cited cases who wish to plead guilty. ABWOR covers the diet at which the plea of guilty is tendered and any subsequent diet. (ABWOR is also applicable in other circumstances such as pleas of competency that challenge the legality of proceedings and for breaches of probation or community service.) To grant ABWOR, a solicitor must be satisfied either that "it is likely that the court will impose a sentence that would deprive the applicant of his or her liberty or lead to a loss of his or her livelihood", or that the "applicant is unable to understand the proceedings or is unable to make his or her own plea in mitigation because of age, disability etc". Generally the solicitor receives 70 for all work up to and including the first diet. If a subsequent diet is set, the solicitor may continue to provide help up to a limit of 150. Further assistance under this scheme requires authorisation from the Scottish Legal Aid Board (SLAB).
14.7 The Summary Legal Aid scheme which is intended to be the main scheme applying to proceedings in the summary courts is only available after the accused has entered a not guilty plea. There is a means test (that, after consideration of the financial circumstances of the accused person, the expenses of the case cannot be met without undue hardship to him or her, or his or her dependants) and a merits test (that it is in the interests of justice for legal aid to be granted). Following the introduction of fixed payments in 1998, the sums payable under the scheme are 300 plus VAT for appearances in the district court and 500 plus VAT in the sheriff court. This payment is intended to cover all the solicitor's work up to the first 30 minutes of a trial or proof in mitigation. Further payments are available if the case goes beyond 30 minutes and for other matters such as deferred sentences and bail appeals. The payment covers the cost of taking precognitions.
14.8 There are two other schemes which are less relevant to our consideration here: these are the Advice and Assistance scheme, which provides support for a range of circumstances where an individual might require legal advice, but not for court appearances; and the Duty Solicitor scheme, which provides for solicitors to be present in courts dealing with initial appearances of accused from custody. If the accused pleads not guilty he or she is then eligible for the Summary Legal Aid scheme. If there is a guilty plea, the solicitor can be paid for subsequent work up to a value of 108.
14.9 The significant difference between the remuneration under the two main schemes mentioned above might be seen as an incentive for solicitors to advise clients to plead not guilty. We do not intend any criticism of solicitors on this point. We are confident that most solicitors faced with a situation where a client is clearly guilty would advise that client to plead guilty. In many situations, however, the position is not clear cut. For example, certain investigations may be required to allow proper advice to be given. Again, the client may admit to some aspects of the complaint, while denying other aspects. In these situations the solicitor would require to advise the client to plead not guilty as there is no other way in which the solicitor can be remunerated while the circumstances of the case are investigated more thoroughly to enable proper advice to be given as to the plea which should be tendered. When a person pleads not guilty, the court is required to fix a trial diet and an earlier intermediate diet. That will usually have the effect that the ultimate disposal of the case is prolonged.
14.10 We do not think that our remit extends to attempting to re-design the legal aid system. We recognise that there are inherent difficulties in designing a system so that solicitors are adequately remunerated for initial work on a case, without at the same time opening the door to increased legal aid claims for cases which would have pled guilty under the present arrangements. Nevertheless we take the view that if an accused is eligible for legal aid, the system should make it possible for his or her solicitor to obtain reasonable remuneration for carrying out such initial investigation as may be necessary to tender a plea of guilty and to deal with that plea in court at an early stage. In any future system it is important that there should be no incentive to investigate cases to an unnecessary extent nor to prolong those cases which are not going to go to trial. Effort and legal aid funds should be concentrated on those cases which merit full investigation.
14.11 In this context we also note the Public Defence Solicitors' Office (PDSO). This scheme involves solicitors employed by SLAB, albeit with complete operational independence, undertaking the defence of clients alongside private sector firms. The scheme started with a pilot project in Edinburgh, but is now to be extended to Glasgow and Inverness. Formal research was done at an early stage in the life of the project, and we were told that the per-case costs of the PDSO were comparable to those of private firms and conviction rates were also broadly similar. However, PDSO cases generally had a shorter trajectory with fewer hearings, and were concluded earlier in the prosecution process. This would seem to us to indicate that there is scope for a re-design of the legal aid scheme to encourage the earlier resolution of cases before trial. We have discussed this proposal with the Scottish Legal Aid Board and believe that a successful re-design is feasible. We have already mentioned (see paragraph 7.97) that moving to an all professional bench would have implications for the legal aid system. It would seem sensible that this issue should be addressed at the same time as any restructuring of legal aid to encourage the earlier resolution of cases before trial.
We recommend that defence solicitors should be properly remunerated for work done at an early stage of a case and be able to obtain reasonable remuneration for work for legally aided clients pleading guilty at this stage.
We recommend that the summary criminal legal aid scheme should be amended to remove the current incentive to plead not guilty, to encourage the early resolution of cases and to discourage the maintenance of pleas of not guilty until relatively late in the proceedings in cases which the trial is not likely to proceed.
14.12 We received many representations at various stages to the effect that there should be a more robust system of discounting of sentences for early pleas of guilty in summary cases, that such a system should be applied consistently over Scotland as a whole and that it should be transparent, in the sense that the court is required to deal expressly with the issue when it arises and make it clear what discount is being given for such a plea and why, or why no discount has been allowed. We take the view that a clear and well understood system of discounts is likely to result in early pleas in a significant proportion of cases which currently plead at or shortly before the trial. Discounts provide an incentive to the guilty to plead guilty at an early stage. We are clear that a transparent system of sentence discounting for early pleas of guilty has an important part to play in making our summary justice system more summary. That implies that discounts should be consistently given, that in appropriate cases the discounts given should be significant and that the system of discounting should be made widely known to those charged in the summary criminal courts.
14.13 The current provision for sentence discounts is set out in section 196(1) of the 1995 Act, which provides that:
"(1) In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court may take into account -
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which that indication was given".
14.14 The terms of that subsection gave rise to widespread uncertainty as to whether or not it is competent to discount to a different type of sentence when an early plea is tendered. It was suggested to us that any revised provision for sentence discounting should make it clear that such a course is competent. In the opinion of the court in Du Plooy v HMA, delivered by the Lord Justice General on 3 October 2003, (2003 SCCR 640) the court stated at para. 3:
"A number of points may be noted about section 196(1). First, the subsection indicates that the taking into account of the matters mentioned in paragraphs (a) and (b) may have a bearing, according to the circumstances of the case, not only on the extent of a sentence but also on the type of disposal or order which is made".
Later in the opinion at para 27 the court reiterated that: "the matters mentioned in paragraphs (a) and (b) of section 196(1) may have a bearing not only on the extent of a sentence but also on the type of disposal or order which is made."
14.15 It is clear from these passages that, in the opinion of the court, a sentencer has power in summary cases to select a sentence which takes account of all the relevant factors, including those relevant to a discount, and may impose a different type of sentence from that which would have been imposed had there been no discount. In the light of the decision in that case we do not consider that any change of the kind suggested to us is required.
14.16 However, the court went on to say at para. 5 that:
"it is to be noted that section 196(1) sets out matters which a court 'may' take into account. In the corresponding enactment in England the wording is identical apart from the use of the word 'shall' (section 152(1) of the Powers of Criminal Courts (Sentencing) Act 2000, formerly section 48(1) of the Criminal Justice and Public Order Act 1994). None of the parties to the discussion in this court was able to give a convincing explanation why 'may', rather than 'shall', was used. One might expect that the sentencer should take these matters into account: they are neutrally expressed. What allowance, if any, the sentencer makes in respect of them is another matter. It may be little or none at all. In the end of the day the parties submitted that there was no practical difference between section 196(1) and the corresponding English provision. In accordance with existing practice in Scotland the sentencer is expected to explain why an allowance was not given where there was an early plea of guilty ( Cleishman v Carnegie 1999 GWD 36-1764)."
14.17 Our view is that, at least so far as summary cases are concerned, section 196(1) of the 1995 Act should be amended by changing "may" to "shall". We note that clause 17 of the Criminal Procedure (Amendment) (Scotland) Bill would make this change and would also amend section 196 by providing that in passing sentence the court would be required to state whether, having taken account of the matters referred to in sub-section 1(a) and (b), the sentence imposed is different from the sentence which the court would otherwise have imposed and, if it is not, why it is not. In relation to summary cases it is our view that that provision does not go as far as it should.
14.18 What allowance is given once the matters referred to in sub-section 1(a) and (b) have been taken into account is, as the court said, a separate matter. If a discount is to be given, we consider that it is important not only that the discount be stated in open court but that, in summary cases, the extent of the discount which has been given, together with a brief statement of the reasons for it being given should be minuted, as should the fact that no discount has been given. We think that that should be a legislative requirement. In busy criminal courts, in which many summary cases may be dealt with in a day, the discounts given or not given should not be left to the later recollection of those present in court. The requirement to minute the extent of the discount and the reasons for it would lead to greater clarity. Those present in court should be told what discount has been given and why. Similarly we take the view that where no discount has been given, the court should also be required to state and to minute that fact and the reasons for it. That approach derives support from the opinion of the court in Du Plooy and Others at para 25 where the court stated:
"In our view it is desirable that, where a plea of guilty and related matters call for some allowance, the sentencer should use a distinct discount in the process of arriving at the appropriate sentence, and should state in court the extent to which he or she has discounted the sentence. The sentencer can do so in a number of ways, such as by indicating what the latter would have been, or by stating the measure of the discount. We appreciate that in Scotland there is no statutory provision corresponding to section 152(2) of the Powers of Criminal Courts (Sentencing) Act 2000, which requires a sentencer in England to state in court, if it is the case, that the punishment is less severe than it would otherwise have been. However, it is in the interests of the public as well as that of the accused that the extent to which sentences are discounted should be known. Those who represent accused persons should know, at least in general terms, the extent to which a sentence is likely to be reduced in the event of a early plea of guilty, so that they can advise the accused accordingly. Stating the discount which has been applied will also serve the purpose of providing victims and the public with a clear explanation as to how the sentences on a plea of guilty have been arrived at. In indicating that this practice should be adopted, we do not mean to suggest that, as from this time, there should necessarily be a reduction in sentences, but rather that there should be greater transparency in the process by which sentencers explain what has led them to the sentences which they impose."
14.19 So far as the extent of the discount which should be allowed is concerned the court at para 26 stated:
"Since the significance of the timing and circumstances of the tendering of the plea of guilty, the practical consequences of the plea and any related matters will vary, it would not be appropriate for there to be a fixed or 'normal' discount. What should be the discount in the individual case is plainly a matter for the discretion of the sentencer. For the same reason we do not consider it appropriate to indicate a maximum or a minimum discount. However, we consider that the discount should normally not exceed a third of the sentence which would otherwise have been imposed. In any particular case, the discount may well be less than that proportion, or none at all. There may, on the other hand, be exceptional circumstances which would justify a greater discount."
14.20 This gives sentencers helpful guidance on the issues they should take into account. We have considered English and Australian cases and practice and recognise the scope for the introduction of a more prescriptive regime as to the extent of the discount which should be allowed in particular circumstances. We consider that any such regime should evolve once courts have greater experience of discounts.
14.21 What matters is that there should be a consistent practice of giving a significant and, where merited, a substantial discount for early pleas, with greater discounts being given in the early stages of cases. We would expect that solicitors would routinely advise their clients of the availability of discounts. In its examination of consistency in sentencing practice more generally the Sentencing Commission may wish to consider the emerging pattern of sentence discounting and whether it is consistent across the country. At Plea and Directions Hearings in Crown Courts in England and Wales (in accordance with practice rules issued by the Lord Chief Justice) and at pre-trial review hearings in magistrates' courts counsel or the defence solicitor are asked if he or she has advised the accused of the availability of a sentence discount for a plea of guilty at that stage. A proforma question which is used in a magistrates' court is in the following terms: "Is the defendant aware that credit will be given for a timely plea of guilty (and may be lost if the plea is delayed)?". We recommend that at intermediate diets the court should routinely obtain confirmation that such advice has been given. (See chapter 20 on intermediate diets generally.)
We recommend that there should be an incentive in terms of a probable sentence discount to encourage early pleas of guilty.
We recommend that in the generality of cases a court should not allow any discount of sentence for a plea on the day of the trial or during the trial.
We recommend that, as far as summary cases are concerned, section 196(1) of the 1995 Act, which enables sentencers to take into account the stage at which a guilty plea is tendered in considering the award of a sentence discount, should be amended by changing "may" to "shall".
We recommend that sentencers be required to state in court whether they have given a sentence discount and the amount of that discount and that the court should be required to minute that.
We recommend that where a sentencer does not give a discount, that fact should also be stated in court along with the reasons for allowing no discount and that the court should be required to minute that.
We do not recommend at this stage that there should be a prescriptive scheme with detailed guidance as to levels of discount.