Monday Message 15.02.16
Mark Fenhalls QC
The New Consultation from the Sentencing Council
Last Thursday the Sentencing Council issued a consultation entitled “Reduction in Sentence for a Guilty Plea Guideline”.
As ever the initial reaction was mixed and with comment that appears to have been written before the authors read the consultation.
I urge you to read the proposals, reflect on them, and if you don’t like what you have found, write and explain why, so that we can incorporate your views into the CBA response.
Some of the features that you might not have expected, but you may welcome, include…
… ‘factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse should not be taken into account in determining the level of reduction. Rather, they should be considered separately and prior to any guilty plea reduction, as potential mitigating factors.’
The guideline specifically changes the old approach that permitted Judges to withhold credit when the evidence is overwhelming. The rationale is that by ‘removing the chance that the reduction might be withheld, the draft guideline will provide defendants and those advising them with certainty regarding the reduction and will provide the greatest possible incentive to plead early.’
One third credit is available where a plea is indicated at the first stage of the proceedings. What does this actually mean? Well by way of example,
For offenders aged 18 or older the first stage of the proceedings will be:
- For summary offences – up to and including the first hearing at the magistrates’ court;
- For either way offences – up to and including the allocation hearing at the magistrates’ court;
- For indictable only offences – up to and including the first hearing at the Crown Court.
In this last category, for practical purposes this will be the PTPH (for the moment murders are subject to a different regime both in terms of hearings and potential discount). This illustrates how the Guideline has been designed (as it states) to fit in with the new procedures we are all coming to terms with.
And for those of you who fear that pressure to plead will come where you think further information or advice is necessary before indicating plea, or when the case has not been served, or where it is an exceptionally complex and time consuming case… well there may be some comfort in the exceptions F1, F2, F4. Of course we have until 5th May to respond. By then we will have a much better idea of whether or not the Crown is actually managing to serve sufficient papers/ evidence in time before PTPHs to enable us to give clients the advice they need.
Fees Processing Update
Last week I received a query about the approach of the LAA to paying fees once a trial was complete but before sentence. We wrote to the LAA using the forum of a group that meets monthly called the Crown Court Consultation Group (“CCCG”). This is a group comprising of civil servants, solicitors and barristers. Later that day I we received the following reply that I think you may wish to see in full
The LAA position on this has recently changed. In the past, we only had access to a snapshot of the court’s case management system (Xhibit). This snapshot was only updated after the sentencing hearing. If a case was submitted prior to this, there was no way of us validating it without a significant amount of effort. To keep processing times down we would return these claims to providers and ask them to resubmit once the case had ended.
As you may know, we have been working closely with our colleagues at HMCTS, and now have access to a more comprehensive version of Xhibit. This has yielded many benefits, including:
- We have been able to almost eradicate the AF3 process. This is the process that we follow to get further information from the courts. The AF3 process can add delay to the processing of a claim as we await the reply from the court, and then process their reply. The number of AF3s we send has fallen from an average of approx. 1500 per month to just 9 in December 2015.
- The number of appeals (as a proportion of the intake of AF1s) has fallen as we are able to make better and more accurate decisions with the enhanced data we have available.
In relation to the specific issue raised, we are also now able to accept and process an AGFS claim before the sentence hearing. Whilst our caseworkers should have been applying this revised policy already, it is a very recent change. All caseworkers have been reminded about this to make sure that this revised arrangement is being consistently applied.
(Please remember) The sentence hearing does not always attract a separate fee, but depending on the number of SAFs, it can generate an additional payment of £86 (in the current scheme).
If you have problems write with the details and we will try and help.
No “message” of mine would be complete without reference to BCM. The LAA has circulated this briefing note which may help inform those of us who are less familiar with the demands placed on solicitors as they wrestle with applications. The LAA says that it aims to decide 90% of applications within 2 working days. I suspect we probably don’t notice the applications that go so smoothly and all focus on the self-employed client who is still struggling to supply the correct up to date accounts several weeks after charge and with a rapidly looming PTPH. I know that the solicitors’ organisations are working hard with the MoJ to develop possible improvement to the systems that may remove further wrinkles and improve all our working lives. Again it is in all our interests if these applications are determined in good time before PTPHs. If problems arise, let us know and we will seek changes to the system where appropriate.
I am delighted to announce that Donal Lawler has been elected as Assistant Secretary nem con. He will take over the post from Sarah Vine who becomes Secretary on 1st March.