Obtaining credit for an early guilty plea is an integral part of the criminal justice system. It is one of the essential elements about which criminal defence lawyers advise clients. Indeed, courts appear obsessed with this one matter. We confirm that we have so advised in a form at a first appearance, when a case is transferred to the Crown Court (better case management form), in another form at the Crown Court (plea and trial preparation hearing form) and indeed we are often asked in court by judges (it is of note that we are never asked about any other fundamental duties, such as being asked to confirm that we have advised clients about the elements of an offence).

The importance of guilty pleas in the criminal justice system cannot be underestimated. As indicated in the Sentencing Council’s Overarching Guideline on Reduction in Sentence for a Guilty Plea, it reduces the impact on victims of crime, saves them and other witnesses from having to give evidence, and saves public time and money on investigations and trials. The earlier the plea is indicated to the court, the greater the above benefits are. These are legitimate and proper objectives for judges to pursue.

The guideline makes it clear that a formula is applied. A one-third discount is given where the plea is clearly indicated at the first opportunity; a one-quarter discount where a guilty plea is entered at the first appearance at the Crown Court; one-tenth if entered on the first day of trial; and a sliding scale in between.

This has been strictly applied by judges. In R v Plaku and others [2021] EWCA Crim 568; June 2021 Legal Action 18, the court held that the one-third discount for an early guilty plea will only be given if there is an ‘unequivocal indication’ that the defendant wants to plead guilty at that first stage of proceedings. This means that in the most serious cases that can only be tried in the Crown Court and where a client does not even enter a plea at the magistrates’ court, a defence lawyer must complete a form making clear that the defendant will plead guilty in the Crown Court. If the lawyer says ‘likely’ to plead guilty, this will not be sufficient.

There is a good argument that this goes too far for the sake of pursuing efficiency. The first appearance at the Crown Court is normally only four weeks after the first appearance at the magistrates’ court. The hearing in the Crown Court is required to take place irrespective of what indication is given in the magistrates’ court. Of course, victims can be assured and Crown Prosecution Service costs of preparation may be slightly less, but for the sake of four weeks, a huge burden is placed on defendants and lawyers. Often, disclosure at this stage is inadequate and makes advice on plea difficult.

The guideline does allow for this to a very limited extent (at para F1) by indicating that in cases where the court is satisfied that there were ‘particular circumstances which significantly reduced the defendant’s ability to understand what was alleged’ or ‘made it unreasonable to expect the defendant to indicate a guilty plea sooner’, a reduction of one-third should still be applied. However, it warns that courts will have to distinguish between cases where it is necessary for the accused ‘to receive advice and/or have sight of evidence in order to understand whether [they are] in fact and law guilty of the offence(s) charged’ and those in which an accused ‘delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal’.

This exemption appears to be rarely applied. There is a more fundamental problem as well. Asking someone to make an immediate decision that could mean a lengthy prison sentence is hard. Some defendants, particularly those accused of an offence for the first time, will find it difficult to make this decision when they have had limited time with their lawyer and at a hearing that lasts a matter of minutes. It does not allow them to build any relationship of trust with the lawyer and they may simply not be in a position to make that decision yet. As ever, stringent rules do not make allowances for human nature.

This issue has been explored extensively in ‘Guilty plea decisions: moving beyond the autonomy myth’ (Rebecca K Helm, Roxanna Dehaghani and Daniel Newman, Modern Law Review, 25 August 2021), which examines the pressures on defendants in relation to their plea decisions. It echoes my and other practitioners’ experiences that the decision on plea risks being compromised. Defendants may not only consider whether or not they are guilty of the offence, but also whether they are safer ‘taking the discount’, whether they can really afford a trial if they are not on legal aid, and how long the process is going to take (an issue particularly relevant at present due to the pandemic). There are real dangers that innocent people may end up pleading guilty. Of 128 cases referred to the Court of Appeal by the Criminal Cases Review Commission since 2012, approximately 50 involved defendants who pleaded guilty.1Rebecca K Helm, ‘Constrained waiver of trial rights? Incentives to plead guilty and the right to a fair trial’, Journal of Law and Society, vol 46, no 3, September 2019, page 423 – see pages 424–425. Equally important, there should be more understanding of those who do not plead guilty immediately, but offer a plea a short time later. Defendants need time to make their decisions, lawyers need time, money and disclosure to advise, and the courts need to adopt a more nuanced approach.