U-turn if you want to...

The UK government has done another about face, this time on sentencing. Alex Deane tells us why it's a terrible idea.

The Royal Courts of Justice, London
Alex Deane
On 23 June 2011 08:46

 As a barrister – albeit one fortunate enough to have escaped the non-paying career of criminal law – I was sad to see this week's über-predictable u-turn on sentencing from the UK government. Plans to permit a larger sentencing discount for those who admit their guilt to the police are eminently sensible. 

I don’t want to be misunderstood; I’m not soft on crime, or criminals – if I ruled the world, I would make prison harder (yes, harder – no TVs, no Playstations). But, whatever the overall length of sentences being handed out, the structure of sentencing should definitely reflect more credit for police station pleas. Here’s why.

We already reward guilty pleas in the court system, on a sliding scale with more credit for earlier pleas and less credit for later ones (and “door of the court” isn’t the latest possible time, either – one can, for a sliver of credit, even cough mid-trial). Maximum credit is available for admitting guilt at the first opportunity in court. The point is that there is presently no incentive (beyond doing the right thing) for guilty people to admit guilt from the first opportunity at the police station. We want them to do that. It saves police time. It saves prosecutorial time. It saves the time of witnesses. It saves court time. And, as our Chairman at Bell Pottinger says in a musing this week, as a result of all that it saves the state a not-inconsiderable amount of money, too.

The extra burden the current situation imposes on investigators is worth exploring in a little more detail. If there’s no difference in sentencing discounts between admitting guilt at the police station and at one’s first appearance in court, then criminals are less likely to admit their guilt until the later stage.

Indeed, it’s marginally in their interests to “game” the system, waiting to see what the prosecution knows when they get to court, which witnesses have actually shown willing and so forth. There is a significant associated cost with that, as police investigators have to prepare that case to a higher quality for court than would have been necessary if the guilty party had thrown his hand in at the police station.

And the whole argument against such discounts is flawed anyway. We absolutely, definitively do not have a plea bargaining system in England and Wales. Except, of course, we do. Defendants plead guilty to offence X, which carries a lesser penalty, after having established that, if they do so, the Crown will offer no evidence in relation to that crime on offence Y, which carries a greater penalty.

Defendants draw up “basis of plea” documents admitting guilt but indicating that the crime was committed in a particular way, rather than on the “full facts” alleged by the Crown. The Crown will often indicate that that basis is acceptable, or at least that it can’t be gainsaid. Such things are entirely legitimate. They can also be viewed as masking what is effectively plea bargaining.

So the government was right before, and wrong now. Certainly, the Justice Secretary Ken Clarke put the arguments with an element of hamfistedness on radio, but that shouldn’t stop the cause in its tracks. Something sad has happened when the media consensus can unite with ill-placed self-righteousness, not only temporarily to overwhelm logic but moreover to defeat the government of the day, which doesn’t even try to defend the entirely correct position it held hitherto.

And the very career of the man concerned is now threatened as a result. Ken is far from my cup of tea – both as a Justice Secretary (his support for the mass closure of Magistrates’ Courts was a disgrace) or as a politician more generally (his pro-Europeanism is as outdated as it is wrong). But he is nevertheless a well-qualified and supremely able Minister. He was doing what he genuinely believed to be right. The corpus of informed opinion in his field thought his approach not only not unreasonable, but eminently welcome. If he is forced out because of this it will reflect extremely poorly on the Coalition, and indeed on the state of politics today.

With disarming naivety, ousted Lib Dem MP and all-round Mr Nice, Evan Harris, campaigns for evidence-based policy making. On current performance, policy-based evidence making would be a far more profitable pursuit.

Alex Deane is a Director of Bell Pottinger Public Affairs. This piece first appeared on their blog and is reposted with consent. You can follow Alex on Twitter at @ajcdeane


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