The mischief of plea bargaining and sentencing rewards. Arguments for and against a reduction in sentence for a guilty plea

Texte Universitaire , 2012 , 10 Pages , Note: 2.1

Droit - Procédure pénale, Criminologie, Régime pénitentiaire

This essay will begin by critically examining the arguments both for and against the discount. In first considering the arguments in favour of the reduction it shall clearly set out the reasons in support of this and shall include an examination into the commentary from a range of different theorists, some of which are against the reduction and who criticise these arguments in favour. This critic will acknowledge these viewpoints and shall respond with reasoning to suggest that the arguments against the discount cannot stand. Thereafter it shall go on to evaluate the arguments not in favour of the discount and this will include a counter response, first in acknowledging the points raised, before then going on to examine what aspect of these arguments are taken issue with.

After critically examining and evaluating the arguments for and against the discount the essay shall then go on to consider the potential solutions to dealing with a number of concerns the reduction presents and whether they are likely to work. The evaluation of these solutions shall then go on to consider the recommendation and will involve a presentation of discussion around the reforms that are intended to rectify the concerns.

In English law a sentencing discount is awarded to the accused if they plead guilty to the crime they are charged with. The current award of around one third distinguishes those who admit to being in the wrong from those who continually deny their flaws.

Introduction

In English law a sentencing discount is awarded to the accused if they plead guilty to the crime they are charged with. The current award of around one third distinguishes those who admit to being in the wrong from those who continually deny their flaws. This essay will begin by critically examining the arguments both for and against the discount. In first considering the arguments in favour of the reduction it shall clearly set out the reasons in support of this and shall include an examination into the commentary from a range of different theorists, some of which are against the reduction and who criticise these arguments in favour. This critic will acknowledge these viewpoints and shall respond with reasoning to suggest that the arguments against the discount cannot stand. Thereafter it shall go on to evaluate the arguments not in favour of the discount and this will include a counter response, first in acknowledging the points raised, before then going on to examine what aspect of these arguments are taken issue with. After critically examining and evaluating the arguments for and against the discount the essay shall then go on to consider the potential solutions to dealing with a number of concerns the reduction presents and whether they are likely to work. The evaluation of these solutions shall then go on to consider the recommendation and will involve a presentation of discussion around the reforms that are intended to rectify the concerns.

The arguments in favour of the sentencing discount

The Remorse Argument

The remorse justification is a recognisable argument for a sentence discount within English law. It is right that a plea of guilty should be rewarded because it is evidence that the offender feels some remorse and accepts responsibility for their actions, indeed the offenders who takes their case to trial does not do so. This is a moral distinction between the two offenders, which justifies the difference in sentence. According to Fiona Leverick this remorse justification is no longer a strong enough argument to justify a discount at least amongst academic writers.¹ Her view is that even if remorse can justify a lower sentence the accused that pleads guilty is not in itself evidence of remorse.²

Leverick makes a valid point because there will be a number of defendants who plead guilty because they regret their behaviour, and it is also likely that an equally large number of persons will plead guilty to obtain the reduction. The courts sometimes have no way of drawing a distinguishing line between the two. She is therefore right to raise the point that in the case of Du Plooy, Alderdice, Crooks and O’Neil v HMA, the remorse argument was accepted before it later conceded that a guilty plea was not entirely evidence of remorse and that, “the accused may have a number of reasons for pleading guilty which have little, if anything to do with genuine regret or a wish to make amends”.³

It is also acknowledged that Leverick refers to Sanders and Young who described the remorse argument as ‘ a singularly unconvincing rational ’ in the majority of cases.⁴

However while appreciating these points the view that remorse is not strong enough because the accused only pleads guilty to obtain a discount is open to further scrutiny. For instance Lord Bonomy suggests that a plea of guilty indicates “acceptance of guilt and acknowledgment of responsibility” and states that the earlier a plea is tendered, “the more likely it is to indicate an acceptance of responsibility and to justify the highest degree of credit”.⁵ Indeed Lord Bonomy makes a fundamental point because a sentence discount provides the offender with an opportunity to admit his guilt and show remorse. It is the opportunity for the accused to demonstrate to the state that he is now prepared to accept the consequences of his actions and attempt to try and make some amends. From the valid but somewhat challengeable points Leverick raises, one may assume that she fails to accept that the benefits of pleading guilty are not always recognised, in that by not putting the prosecutor to proof does save time and resources.

Lets consider those situations where the offender committed the crime but the circumstances of the particular case were out of their hands, in other words through desperation or duress. For example lets say the accused has children that she needs to feed and due to her troubling financial circumstances, she is living in poverty. Lets imagine that she has no choice but to enter a retail outlet and steel so as to provide for her family. She has undoubtedly committed the offence of theft under the Theft Acts of 1968 and 1978 but this does not mean she wanted to do this crime. When assessing the issue from this point of view, one could rightly infer that she is not actually a bad person and that the situation placed her in an impossible situation, as things were out of her hands. In this sense the guilty plea would be the opportunity for her to show remorse. In this scenario when considering the facts and before a plea bargaining option becomes available, one may ask what would there be to suggest that the accused was not at all remorseful?

Furthermore, in a similar vain, lets imagine the offender is charged with Murder under the Homicide Act 1957, but claims this was due to duress, that she had no choice but to kill, as she was in fear of her own or someone else’s life. According to the executive this is not a defence to Murder. However, let us imagine the accused was put in a position where she had no choice but to strangle her daughter to death, because otherwise she would be shot and killed instantly. Here we can clearly see that the situation is out of her hands and that she does not have any intention to kill. The rules are clear that for murdering her child she would serve a mandatory life sentence therefore she would be benefited in pleading guilty and receiving the reduction. Again we know she is not a bad person and did not intend to kill so what would there be to suggest she was not being remorseful? It is submitted that it is in these types of situations that the remorse argument would suffice and would also justify why we should continue to uphold the discount. The fact that remorse may no longer be justified seems a little unjust.

The sparing the victim argument

Another point of fundamental importance is that a plea of guilty spares the victim and the witnesses from having to give evidence. Indeed by Leverick’s own admission the sparing the victim justification has found favour in Scotland and was drawn upon in Du Plooy , when the court stated that a plea of guilty is likely to, “avoid inconvenience to witnesses or in certain types of cases, avoid additional distress being caused by their being required to give evidence or be precognosced for that purpose”.⁶ The English Court of Appeal (CA) in R v Millberry has adopted this sparing the victim argument. Like the remorse argument Leverick is also of the view that this justification is a weak one, indeed she contends that if the vulnerable are saved the ordeal of giving evidence a discount would only be justified in these types of cases.⁷ Her view is that in many summery trials most witnesses are members of the police force or experts in their fields, and that it would be ludicrous to suggest that a discount be accepted in order to spare the police from the ordeal of giving evidence.⁸

At the outset Leverick would appear to have a valid point because there will be those persons who are not vulnerable. It is also true that some victims may actually desire to attend trial and go through the ordeal of giving evidence because it gives them the opportunity to be heard. They may prefer this contested trial option over the guilty plea, as Leverick says, “avoiding the trauma of giving evidence is purchased at the price of seeing their offender receive a lesser sentence than he or she would otherwise have done”.⁹ However in challenging her on this point how does one know if a person is vulnerable and how does one classify vulnerability?

What Leverick is not acknowledging is that the professionals she is referring to are not immune; they like most of us are a part of society doing their utmost to get by. People can suffer nervous breakdowns, depression and become traumatised and this equally applies to those members of the community who serve the state. It is not completely correct to infer that people in certain professions are not vulnerable. The point for Leverick to acknowledge is how the victims and witnesses feel after a serious crime has taken place, one of which was so extreme that they could not bare the ordeal of having to attend court, to give evidence and face their opponent. This can raise anxiety, stress and could traumatise them with the very thought of having to be put through it again.

To elaborate lets say the accused is charged with rape contrary to the Sexual Offences Act 2003 , the offence could have been so bad that the victim may not wish to relive the moment. In other words that she would rather never have to face her attacker again, as this would bring back her painful memories. She may feel unable to cope with giving evidence especially with the prospect of being cross examined by a partisan defence advocate. According to Conley and O’Barr, a cross examination can be so extreme, as well as manipulative in making the victim relive the events, it can in fact sometimes be said to be worse than the offence itself.¹⁰ It is therefore understandable that she may not wish to attend her majesties courts meaning that a plea of guilty will again be beneficial, this time to the victim and not just the accused.

Furthermore according to Mirco Bagaric and Julie Brebner one of the main reasons for according the discount is that it avoids inconvenience to witnesses.¹¹ In their literature they rightly refer to a ruling that was handed down by Kirby J in Cameron which stated, “a plea of guilty may also help the victims of crime to put their experience behind them; to receive vindication and support from their families and friends and possibly assistance from the community for injuries they have suffered. Especially in cases of homicide and sexual offences, a plea of guilty may spare the victim or the victim’s family and friends the ordeal of having to give evidence”.¹² Indeed they are correct to be of the view that the avoidance of inconvenience and distress to witnesses may have a value worth rewarding through a guilty plea discount. On this analysis one cannot fully share Leverick’s view as any inconvenience that is avoided will more than suffice.

The arguments against the sentencing discount

Sentence discounting encourages the innocent to plead guilty

According to Leverick one of the fundamental problems caused by the sentence discount is that it encourages the innocent to plead guilty.¹³ She firmly asserts that in reality, when faced with a choice between pleading guilty and contesting the crown, a citizen would cut her losses as opposed to receiving a sentence worth up to 50% higher than otherwise would have been imposed.¹⁴ Again in asserting her reasons why we should abandon the discount Leverick raises an important point. It is correct that the conviction of the innocent is damaging to society and to victims on the bases that the real offender remains free on our streets. In 1977, Baldwin and McConville interviewed a number of defendants who pleaded guilty and they found that 58% of those persons were still claiming to be innocent,¹⁵ so one sympathises with Leverick on this point.

However we cannot put aside the fact that it can be a natural human instinct to continue to claim innocence, therefore it is difficult to assess weather those who plead guilty are actually innocent. By both Baldwin and McConville’s own admission they freely admit that a few of the claims carried out in the interviews were ‘ scarcely believable ’ or ‘ far-fetched ’.¹⁶ Moreover Leverick herself acknowledges that Zander and Henderson both carried out a two week study of all Crown court trials, by asking the advocates involved whether they were concerned that the innocent party were pleading guilty so as to obtain a discount.¹⁷ This added up to an annul total of 1000+ cases where the innocent were pleading guilty in the hope to gain a 30% reduction, but interestingly and for the benefit of challenging Leverick, Zander does not see this as an issue of great importance.¹⁸

Indeed he referred to the accused as “the innocent (?) Who pleaded guilty”¹⁹ and stated “few are thought to be a cause for concern”.²⁰

Furthermore Mulcahy pointed out that criminal justice professional’s arguably function on the assumption that the majority of defendants are guilty however much they protest their innocence.²¹ As Leverick herself rightly points out in her literature, the Royal Commission which recommended the 30% reduction accepted the risk that innocent citizens would plead guilty in order to obtain the discount, it concluded that this risk must be balanced against the efficiency benefit that discounting brings to the Criminal Justice System.²² It is unfortunate that Leverick cannot seem to accept this balancing model in a positive way.

Sentence discounts penalise those who exercise the right to take their case to trial

The second objection to the discount that Leverick rightly alerts us to is that it unfairly penalises those who exercise their right to take their case to trial, by imposing a greater punishment on them than on an offender who pleaded guilty.²³ For instance if the accused is charged with robbery under section 8 of the Theft Act 1968, ²⁴ he has a right to take his case to trial and to put the prosecution to proof. This is being undermined and one can understand the difficulty this has on our truly innocent members of the community. According to Ashworth, if it is accepted that an accused person has the right to be presumed innocent until proven guilty this carries with it a right to make the crown prove its case at trial.²⁵

The very idea that discounts penalise those who exercise their right to trial has been challenged on the basis that the discount rewards those who plead guilty, rather than punishing those who contest their case and the guilty plea is verified as a mitigating factor in sentencing. For instance Bagaric and Brebner agree that in Cameron the argument endorsed by a majority ruling was the justification that the discount does not actually penalise those who plead not guilty, but that those persons will just not get the benefit. In Cameron the judgement laid down by Kirby J stated, “An accused that insists upon such rights must not be penalised. An accused must not have the sentence increased to make the sentencing judge’s conclusion that the prisoner has wasted the court’s time or the public’s resources by insisting on a trial. Yet, necessarily, reliance on such rights will deprive the accused of any mitigation that might otherwise have resulted from a plea of guilty”.²⁶ This argument that those offenders do not get penalised but instead do not get the benefit seems a little flawed. It is no surprise that Bagaric and Brebner appear to be of the view that providing a discount to offenders who plead guilty logically entails that the accused that is found guilty after exercising their right to trial is penalised to a greater extent and they are correct.

Furthermore one would have to agree with Penny Derbyshire, who shares the view that the discounts induce innocent people to plead guilty.²⁷ She adopts the view of the Law Commission when it conceded, “it would be naïve to suppose that innocent persons never plead guilty because of the prospect of the sentence discount”²⁸ and she is right. In contrast to the view expressed by Kirby J in Cameron v The Queen , Leverick is correct to make the point that whether the discount is seen as a penalty or a mitigating factor the effect is the same with two accused persons, apart from the fact of a guilty plea by one of them, each receives a different sentence.²⁹ From this observation it is clear that there is a concern centred on those who are innocent and who intend on exercising their right to take their case to trial.

However, aside from the remorse and relief to victim’s argument already raised above, another point, which is fundamental to ensuring the survival of the discount, is that of the efficiency benefits guilty pleas bring to the Criminal Justice System. If the accused pleads guilty the time and expense of a trial are avoided. It results in high cost savings to the system and the earlier it is made the greater these savings are to the state. It results in savings for courts, prosecutors, defence solicitors and witnesses. There is also an effect in terms of the time freed up for those who choose to contest their cases. If a number of accused persons are persuaded through the offer of a sentence reduction to plead guilty at an early stage, this could help with delays, sparing the accused and the witnesses from the experience of a lengthy wait before their case is heard.

Incredibly the law rejects this argument. In the case of R v Millberry , Lord Woolf CJ stated that, “saving court time, costs and allowing the defendant to manipulate the system in his favour…is not, however, the reason why the [English] courts are prepared to and should reduce sentences in a case in which the offender pleads guilty”.³⁰ This judgment is intriguing and in contrast this efficiency argument is accepted in Scotland. Here is where one should now agree with Leverick, when she asserts that the court in Du Plooy said that it is appropriate to reward the tendering of a plea of guilty because it “is likely to save public money and court time”.³¹ She is equally right to refer that Du Plooy expressed an approval of a passage in the Australian High Court case of Cameron v The Queen , when Kirby J stated that: “it is in the public interest to facilitate pleas of guilty by those who are guilty and to conserve the trial process substantially to cases where there is a real contest about guilt. Doing this helps ease the congestion in the courts that delay the hearing of such trials as must be held”.³² Indeed we can see the value that a guilty plea holds to the system and how much taxpayers would benefit by this.

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¹ F. Leverick, ‘Tensions and Balances, Costs and Rewards: the Sentence Discount in Scotland’ Edinburgh Law Review, Vol. 8, 2004, p. 370

² ibid

³ ibid p.371

⁴ ibid p.372

⁵ ibid p.371

⁶ ibid p. 372

⁷ ibid p. 373

⁸ ibid

⁹ ibid p. 374

¹⁰ J M Conley & W M O’Barr, Just Words, Law, Language and Power, (2nd edn), Chicago Press, London, 1998, pp. 15-39

¹¹ M Bagaric & J Brebner, ‘The Solution to the Dilemma Presented by the Guilty Plea Discount: The Qualified Guilty Plea, ‘I’m Pleading Guilty only Because of the Discount’, International Journal of the Sociology of Law, 2002, p. 10

¹² ibid.

¹³ F. Leverick, op. cit., p. 380

¹⁴ ibid.

¹⁵ ibid.

¹⁶ ibid.

¹⁷ ibid p. 381

¹⁸ ibid.

¹⁹ ibid.

²⁰ ibid.

²¹ ibid.

²² ibid.

²³ ibid p. 382

²⁴ C Elliot & F Quinn, Criminal Law, (7th edn), Pearson Longman, 2008, pp. 202

²⁵ F. Leverick, loc. Cit.

²⁶ M Bagaric & J Brebner, op. cit., p. 7

²⁷ P. Darbyshire, ‘The Mischief of Plea Bargaining and Sentencing Rewards’, Criminal Law Review, 2000, p. 4

²⁸ ibid.

²⁹ F. Leverick, op. cit., p. 383

³⁰ ibid. p. 376

³¹ ibid. p. 376, 377

³² ibid.

• Université: City University London (The City law School)
• Cours: LLM Criminal Litigation
• Note: 2.1
• Auteur: James Michael Corbett (Auteur)
• Année de publication: 2012
• Pages: 10
• N° de catalogue: V949839
• ISBN (ebook): 9783346290212
• Langue: anglais
• mots-clé: arguments