Caley & others (guilty pleas) v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hughes |
| Judgment Date | 21 December 2012 |
| Neutral Citation | [2012] EWCA Crim 2821 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 201201799A2, 2012022074A2, 201202806A7, 201202711A7, 201202600D1, 201202493A5, 201202497A5, 201202773A8, 201203188A8 |
| Date | 21 December 2012 |
[2012] EWCA Crim 2821
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
The Crown Court at Peterborough, HHJ Enright T20117218 (Caley)
The Crown Court at Peterborough, HHJ Enright T20117219 (Robertson)
The Crown Court at Warrington, Mr Recorder Menary T20120052 (Perry)
The Crown Court at Liverpool, HHJ Clifton T20117823 (Bowen)
The Crown Court at Southwark, HHJ John C. Price T20107596, T20107373 (Sanham)
The Crown Court at Snaresbrook, Mr Recorder Nigel Peters T20127024 (Kamwiziku) T20127025 (Didonga)
The Crown Court at Lincoln, HHJ Morris S20120085 (Wade and McWilliams)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hughes
Mr Justice Wilkie
and
Mr Justice Popplewell
Case No: 201201799A2, 2012022074A2, 201202806A7, 201202711A7, 201202600D1, 201202493A5, 201202497A5, 201202773A8, 201203188A8
Michael Duffy for the Appellant Caley
Tim Bowden for the Appellant Robertson
James E Coutts for the Appellant Perry
Paul Wood (instructed by Kirwans Solicitors) for the Appellant Bowen
Jamas Hodivala for the Appellant Sanham
Daniel W. O'Malley (instructed by Michael Carroll & Co) for the Appellant Kamwiziku
James Boyle (instructed by Michael Carroll & Co) for the Appellant Didonga
Nicola Devas for the Appellant Wain
Samuel Skinner for the Appellant McWilliams
Tom Little for the Respondent
Hearing dates: 4th October 2012
The several cases before us raise a number of different questions associated with the long established practice in sentencing which recognises that a distinction should ordinarily be drawn between a defendant who admits his guilt and one who does not. It has been convenient to hear them together and we believe that it is possible to give some general guidance on some of those questions. We do not, however, set out to re-appraise ab initio every issue which may arise in connection with sentencing upon pleas of guilty. There is an existing guideline issued by the Sentencing Guidelines Council ("SGC") in July 2007 (a second edition of a document originating in 2004). It is thus necessarily the point of departure. The cases before us do not, moreover, provide the material which would be required if there were to be a wholesale re-appraisal of reduction for plea. Nor would it be appropriate for this court to exercise its powers to deliver a judgment seeking to make fundamental alterations in the practice. It is known that the Sentencing Council has the overall approach to pleas of guilty and sentencing on its agenda, having deferred further consideration of the topic when the possibility existed (now no longer present) that the Government might seek to introduce legislation upon it. When it resumes consideration of the topic, the Council will be able to have access to the product of wide consultation, and probably to research material which is not before us in these cases. Whether any overall re-visitation of the topic is necessary or appropriate must remain for the future. Some questions, however, arise as to how the SGC guideline should normally be applied. Furthermore, some aspects of the handling of cases in the criminal courts have altered in recent years and the manner in which the Guideline should be applied to present procedures needs to be considered. It is to these topics that we address ourselves.
The starting point is in statute. Section 144(1) of the Criminal Justice Act 2003 is mandatory:
"(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence….a court must take into account:
(a) the stage in the proceedings…at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which this indication was given."
Section 174 requires the court which moderates the sentence on this basis to say that it is doing so.
We draw attention to the wording. 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.
Section 144 reflects the practice which the criminal courts had developed over many years. The SGC Guideline identifies the purpose of the practice at paragraph 2.2:
"A reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost, and, in the case of an early plea, saves victims and witnesses from the concern about having to give evidence. The reduction principle derives from the need for the effective administration of justice and not as an aspect of mitigation."
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 well established 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.
"First reasonable opportunity"
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 SGC Guideline contains at Annexe 1 some general assistance in determining the point of first reasonable opportunity. That document however leaves unresolved a question which is important in the context of current practice for handling the early stages of a criminal prosecution. It suggests that the first reasonable opportunity may be the first time a defendant appears in court and has the opportunity to enter a plea (ie when he is arraigned), but also that a court might consider that he had a reasonable earlier opportunity to indicate a willingness to plead guilty, and "perhaps whilst under interview".
A broad spectrum of possibilities is thus left open, beginning with the police interview of the defendant as a suspect, passing through a variety of possible hearings in the Magistrates' and Crown Courts and ending with formal arraignment. It has fallen to us to consider whether within...
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Attorney-general's Reference No 78 of 2012
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Attorney-general's Reference No 15, 16 & 17 of 2013
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