Now that I am retired having been many years a magistrate with a long awareness of the declining freedoms enjoyed by the ordinary citizen and a corresponding fear of the big brother state`s ever increasing encroachment on civil liberties I hope that my personal observations within these general parameters will be of interest to those with an open mind. Having been blogging with this title for many years against the rules of the Ministry of Justice my new found freedom should allow me to be less inhibited in these observations.




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Monday, 13 March 2017

KNOWN UNKNOWNS

I think it can still be statistically accurate to comment that a majority of citizens has never appeared at a magistrates` court either as defendant or witness although it is likely that the trend is on the increase.  It is reckoned by some authorities that about one third of all men aged over 30 do have a conviction at the lower court although motoring offences are liable to be responsible for many. The statistics are just not kept officially.  On the other hand it is statistically accurate to note that availability of legal aid for defendants has been reduced drastically in the last decade. Also well known is the sentence reduction available to those appearing both in the lower and crown courts who plead guilty before trial thus ensuring that all things being equal there will be a reduction of one third in level of sentence.  Perhaps the major change in sentencing over the last twenty years has been the use of Sentencing Guidelines; a format imposed on all sentencers in what was seen by some as an overdue attempt to impose some sort of conformity in sentencing and thus avoiding what has been termed in diverse circumstances as a post code lottery.  Anyone taking time to peruse this document might assume that its almost mathematical layout and structure in coming to conclusions on almost every type of case imaginable was based on hard evidence. After all the justice system via the Home Office and Justice Ministry employ thousands of individuals whose main occupation is statistical analysis or job description requires detailed recording of virtually every interaction they undertake. 

In an increasing effort to secure ever more early guilty pleas defendants have been encouraged inter alia to plead guilty to a lower level of offence than would normally have been laid against them.  This is especially true in cases of assault. Magistrates and lawyers are well acquainted with defendants being prosecuted for both s.4 and s.5 public order offences with the more serious being dropped if a guilty plea is made to the lesser charge. The benefit to an offender of a sentence reduction for an "early" guilty plea especially for those matters to be tried at the crown court is not unreasonable insofar as the tax payer and witnesses are saved costs and no little trauma. Generally the offender would have had  the assistance of a lawyer and would have pleaded guilty with knowledge. But at the magistrates` court it is an altogether different scenario.  A great many defendants have no legal representation especially at first hearing.  A duty solicitor should be available at all times but the help given can be of variable quality and therefore a guilty plea in that instance can, for some defendants, be a short cut to ridding themselves of the problem with a sentence discount of a third and an acceptance of what they think are their just deserts especially if they have a record. Without much fanfare the Sentencing Council announced recently that that maximum discount will in future be available in the magistrates` court only for a guilty plea at the first hearing.  One would have thought that behind such a change of direction there would be if not a mass but at least some statistical evidence to indicate the basis of a benefit to society in this effort to persuade defendants not to continue putting the crown to proof in establishing guilt.  One would have been wrong.  There are no statistics on guilty pleas at magistrates` courts. There is of course a wealth of convictions analyses but that`s a different thing. In its consultation document (copied in part below) on this change in discount situation there is an admission of the lack of evidence......my underline.

Is this really the way we go about trying to secure higher conviction rates which the Sentencing Council is apparently embarked upon?  In China the conviction rate for all offences is >99%.  The noisy advocates who scream that convictions for rape are too low; no doubt increasing their decibel levels over recent cases, would argue that 99% conviction is perhaps just a tad too high. For those of us who believe that our once proud to be British justice system is losing its lustre this imminent change does nothing to alter our opinion.  Basing sentencing policy on known unknowns is, quite simply, not justified. 



Statistical research and analysis.

Virtually all criminal cases start in magistrates’ courts. The most recent annual statistics14 show that approximately 1.47 million defendants were proceeded against at magistrates’ courts in 2014. Of those, 1.22 million resulted in convictions in either magistrates’ courts or the Crown Court, which means that the offender either pleaded guilty or was convicted after a trial. Information on the percentage of offenders who plead guilty is only available for the Crown Court. Of the 86,297 offenders sentenced in the Crown Court in 2014, 77,289 (90 per cent) pleaded guilty and 9,008 were found guilty after a trial. Of the 90 per cent who pleaded guilty in the Crown Court, 72 per cent pleaded guilty at what was adjudged to be the ‘first reasonable opportunity.’ It would seem likely that there are many factors which influence the decision whether and when to plead guilty. One suggestion is that offenders are likely to be encouraged to plead guilty at an early stage if they believe that by doing so they will avoid a custodial sentence. The published statistics show some evidence of this in the Crown Court; a lower proportion of offenders that pleaded guilty were sentenced to immediate custody (53 per cent) compared to those that pleaded not guilty (71 per cent). There are also differences across offence types, with the rate of guilty pleas among those convicted of indictable sexual offences at the Crown Court at 61 per cent, which is considerably lower than the overall rate for indictable offences (89 per cent).


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