Monday, 5 October 2009


The previous Labour government proposed setting up a sentencing council to advise the judges on guidelines for appropriate sentences. With the change in government last year, the sentencing council concept was scrapped. Reminding us again that the Court of Appeal is just across the road from Parliament, the full Court has taken it on themselves to become the sentencing council, which was probably their job in the first place. In the recent decision of R v Hessell CA170/2009 [2 October 2009], a full court has said that the Court of Appeal has resumed issuing guideline judgements and began with the effect of guilty pleas upon a sentence. The case itself is a rather sordid sexual escapade involving drink, speed and girls aged 14 and 15. The girl's mother and her partner initiated a drink fuelled sexual orgy with the girls. The mother and her partner were both charged, but the mother pleaded guilty early on in the piece. The partner only pleaded guilty in a few days before the trial was due to commence. He appealed a sentence of two years eight months imposed by Justice Heath, at least in part because the mother received a sentence of less than imprisonment, 12 months home detention. The disparity of the sentence was then attacked. The appeal was unsuccessful, not perhaps surprising considering the experience, and realistic approach from Justice Heath. However the Court of Appeal considered it was time to provide guidelines on the correct approach for discounts for pleading guilty. In doing so, the court has made a number of comments on judicial discretion in sentencing, effectively fettering the discretion of the District and High Court. This appears to have been a deliberate decision, because there is much discussion in the decision of the wide sentencing discretion formerly available to the judges. This can be summed up in a quote "The passage of the Sentencing Act 2002, with its insistence on a highly structured approach to sentencing, signalled the need to review unfettered discretions and effectively rendered the traditional approach to guilty pleas untenable. In particular, s 8(e) of that Act established as a fundamental principle of sentencing that like cases must be treated alike, so far as possible, and s 9(2)(b) identified a guilty plea as a discrete mitigating factor." Or in other words do as we say. It is a common feature of criticisms of sentences that the judge has got it wrong-too light/too heavy. If the judges are able to respond by saying Parliament has now prescribed this Act, and the Court of Appeal has told us the guidelines made under the Act, then they have an answer to the criticism, that they are just following what has been decided, or applying stare decisis.

The particular guidelines are the allowance for pleading guilty, and the appropriate discount for doing so. It seems that nodding to the charge at the first opportunity is of most benefit, but if you leave the admission to the day of the trial, then this may not have an effect on the sentence. I am reminded that back in the 19th Century, trials often took place only days after arrest. If you read contemporary accounts, the juries were assembled very quickly. It is only in the days of the strike out for delay between arrest and trial, that the discounts gain traction. Essentially the best discount is a third for the first opportunity. This falls to 20% at a status hearing or first call of an indictment, and down to 10% up to 3 weeks before trial. However remorse is not to be a separate factor. In what may be seen as a cynical analysis of the sincerity of remorse, the court distinguished this saying "we acknowledge that exceptional remorse, demonstrated in a practical and material way, can attract its own reward."

The point made is that administrative convenience is creeping into the way in which crime is disposed of. I have previously expressed concerns about over prosecution. Care will need to be taken in sentencing someone, who has delayed a guilty plea because of enthusiastic over prosecution, and if the correct charges were used, would have pleaded at the beginning. And I do wonder about remorse. It is often very important to the victim, that there is remorse. While it may be apparently easy to say you are sorry, anyone with experience of children will know the difference between genuine contrition and the curt teeth gritted version. A wise older lawyer taught me the need to express remorse at an early stage when dealing with professional disciplinary charges, and how this can deflate the heat of a complaint. I think it is much harder to say you are sorry then the Court of Appeal would accept.


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