Official Report (Hansard)
Date: Thursday, 05 July 2012
Committee for Justice
Earlier Guilty Pleas and Reform of Committal Proceedings: Consultation Responses
The Chairperson: I welcome Maura Campbell, the deputy director of the criminal justice development division, and Chris Matthews and Graham Walker from the same division. This session will be covered by Hansard, and the report will be published in due course. Maura, I invite you to outline the paper for us.
Ms Maura Campbell (Department of Justice): Thank you very much, Chairman. On this occasion, we thought that it was important to provide an oral briefing on the outcome of these particular consultations, given the feedback that was provided by the Committee when we briefed it on the Department's policy proposals back in September of last year. At that time, the Committee had registered a particular note of caution around how the work on early guilty pleas should be presented and how it might be perceived publicly. We sought, as far as possible, to incorporate that feedback in the consultation document. Given the sensitivity of the issue, we thought that it would be helpful to engage with you again at this point. I should mention that, although the two consultations were issued as separate papers, given that the initiatives are complementary — in fact, many respondents highlighted that — we thought it made sense to draw the summary of responses into a single report.
To augment the written consultation, we convened a focus group event with groups representing victims' interests. We also organised a discussion with two groups of offenders currently on probation to discuss in depth the victim and offender experience. The feedback from those events is reflected in the paper. For the offender discussion, we were joined by the Criminal Justice Inspection (CJI). You may be aware that it is conducting a thematic inspection of early guilty pleas at the moment. We have met the lead inspector to discuss the emerging findings from that inspection, and, without wishing to pre-empt his report, we are hopeful that the proposed way forward that we are discussing today is in tune with the likely findings of that inspection.
I will deal first with the consultation on encouraging earlier guilty pleas. Consultees broadly felt that option 1, enhancing the existing arrangements, would not on its own deliver the level of change required. Although we agree with that analysis, we do think that there is merit in enhancing understanding of the current arrangements. Views were mixed on whether there ought to be a duty on a sentencing court to state the level of credit that would have applied had a guilty plea been entered. Although we recognise that, in many instances, judges already do that, we think that requiring a court to make that clear in appropriate circumstances would help increase transparency. Although it would act only as a broad guideline, it would aid understanding of the benefits of an early plea. We intend to legislate for that in the faster, fairer justice Bill.
Consultees mostly favoured option 2, which is about making procedural changes to present the case against the accused at an earlier stage, although there were a number of different views on how that type of reform could be secured and the challenges it might bring. I will come to how we want to take that forward in a moment.
The option for which there was least support was option 3, which would introduce a presumption of credit for a guilty plea and modify judicial discretion around sentencing. In other words, it would create a statutory discount scheme as exists in England and Wales. As the consultation paper notes, we found no strong evidence that there are any particular issues with the application of judicial discretion at the moment, and the views from consultees bore that out.
As part of the next steps, we now intend to establish a project group to develop the detail of the earlier guilty plea scheme. In summary, the scheme would be designed to encourage early engagement on the issues between the prosecution and defence to allow an early view of the case against the accused to be provided. The aim would be to allow an informed decision about whether a guilty plea should be entered to be made earlier in the process.
It is worth noting that a number of the procedural initiatives that we need to bring together to deliver option 2 — things like case-ready charging or streamlined files — are already being trialled by our partner agencies. Indeed, I think Harry made mention of those when he attended on 21 June.
I turn now to the reform of committal proceedings. The consultation paper proposed the abolition of the taking of oral evidence from a witness at committal proceedings. It also sought views on the scope for more fundamental reform of committal. There was strong support for the removal of taking oral evidence. In effect, that would abolish preliminary investigation and mixed committals. We intend to legislate for that change in the faster, fairer justice Bill, with a view to bringing it into operation at the earliest opportunity. That would leave us with just preliminary inquiry, which is a more streamlined process conducted "on the papers". There was support for extending that to terrorist cases certified under the Justice and Security (Northern Ireland) Act 2007 and extraterritorial cases.
I should draw to the Committee's attention the fact that we did see an appetite among some consultees for wider reform of committal proceedings. In particular, we are considering enabling the direct transfer of certain types of case to the Crown Court. For example, there could be benefits in sending murder cases to the Crown Court at an earlier stage than is currently possible, or, where the defendant wishes to plead guilty to an indictable offence, we could allow the plea to be entered in the Magistrates' Court, request the pre-sentence reports and then transfer the person to the Crown Court for sentencing. Some consultees suggested abolishing committal entirely and moving to a system of direct transfer for all indictable cases and all hybrid cases tried on indictment. We can see the benefits of that. However, some respondents cautioned that that could have the effect of moving cases into the Crown Court before they were ready, so, effectively, you would be moving delay from one place to another.
There are a couple of options if we go down the route of total abolition. One would be to wait for the abolition of committal until the procedural improvements we are seeking to make in preparation for the introduction of statutory time limits have had a chance to bed in, or we could take a power now in the faster, fairer justice Bill but defer its commencement until we think the system is ready. That is a point on which we would especially welcome the Committee's views today. How far should we be aiming to go at this stage in relation to committal reform?
In closing, I would like to highlight that earlier guilty pleas and the abolition of oral testimony at committal were the issues that victims' groups and representatives asked us to prioritise in the speeding up justice programme when we consulted them previously. I think Tuesday night's debate reinforced again the need to keep the impact on victims very much to the fore as we take forward our plans on speeding up justice. We are happy to take questions.
The Chairperson: Thank you very much.
Mr Wells: I have a couple of points. Do we know how much time and money would be saved if we simply abolished the committal proceedings stage of the process?
Ms M Campbell: I do not think we have firm costings for that, but we would have to bear in mind that, if we were to transfer cases today from the Magistrates' Court straight into Crown Court, that could be expensive. So, you would have to offset that. However, as far as I am aware, we have not done a detailed costing.
Mr Wells: How would the defendant lose out, if at all, if that stage of the process were eliminated?
Ms M Campbell: Our view is that they would not lose out, because there are so many other safeguards available to defendants at the moment.
Mr Wells: It just looks like it is an unnecessary stage. It has been there since time began, and it is always assumed that it will happen, yet we do not actually know why we do it. If we were starting afresh, would we have it now?
Mr Graham Walker (Department of Justice): Essentially, its purpose is to identify whether there is a prima facie case against the defendant. It is an opportunity for the court, through a preliminary inquiry — the streamlined version — to consider the papers to see whether there is a case to answer.
Mr Wells: Very few cases fall at that stage, so it does not work.
Mr Walker: It is true that the number of cases that are weeded out, for want of a better phrase, at that stage is fairly low.
Mr Wells: Even if they go through the process and get past committal stage, the reality is that there are many, many opportunities further downstream if it is a weak case or the evidence is totally fallacious. It strikes me that it is one of those things that we do because we do it, but it does not guard the defendants or provide better justice.
Mr Chris Matthews (Department of Justice): As an aspiration, we want to get to a position where there is no need for committal and we can directly transfer cases. Part of the issue is that so many consequential changes would be required if you just uprooted it and got rid of it immediately. For example, there would be a queue of cases waiting to get into the Crown Court, and there would be a fear that, if the rest of the system is too slow, the Crown Court would end up becoming a remand court. I think that, if we were able to address some of the other procedural issues at the earlier stages, we would very quickly see that we could move beyond even direct transfer to outright abolition.
Mr Wells: It strikes me as being a very expensive and convoluted holding centre if its only purpose is to stop the stream of people to the Crown Court.
Mr Matthews: It is not that that is its purpose, but I think that that would be a consequence. If we were to get rid of it now, we would end up with cases that are not ready to go to the Crown Court going to the Crown Court but not necessarily moving any more quickly towards resolution.
Mr Wells: It is quite shocking that, in 85% of cases, there are either guilty pleas or people are proven to be guilty. So, the vast majority of people who plead not guilty know jolly well that they are. I suppose they are hoping for some technical issue. I was involved in one case in Ballynahinch in which a house was raided and the most awful child pornography was found on a computer. The individual pleaded not guilty, and somebody had not signed the appropriate warrant. He got off scot-free, much to the anger of the community. However, that is rare. Therefore, if such a high proportion of people are guilty — obviously, if they admit to guilt or are proven to be guilty, they are guilty -— anything that encourages them to plea early will save taxpayers money and stop the courts being clogged up. Under the new system that you have introduced of fixed tariffs for cases, has the incentive, dare I say it, for the solicitor and the legal representation to string out not guilty pleas gone completely?
Mr Matthews: I need to be careful how I talk about this. There has been some talk about this idea of perverse incentives to bring cases forward. I know that proposals on legal aid will be brought forward in the autumn, and they will address the key issue at the moment, which is the idea of guilty plea 1 and guilty plea 2. I think that is where there is a slightly higher payment if the guilty plea comes at the court stage rather than at, say, the interview stage, before you get to the courtroom. I suppose that, if you look at it from that perspective, you could say that, yes, there are some grounds for saying that, potentially, there is a perverse incentive to take the case to the courtroom because you get more money for that. I am sure that there are people you will talk to who will tell you that is what is happening.
In the autumn, the legal aid reforms are going to address that issue specifically, along with other things. The Committee has talked before about the flat fee in Scotland. Although that is not necessarily part of this team's remit, the issue of legal aid and the potential for perverse incentives to prolong trials is definitely something that the wider system is looking at.
Mr Wells: The allegation is that some solicitors specialise in deliberately stringing out cases using the not guilty plea until the last possible moment in order to attract the highest possible remuneration. Now, heaven forbid that that could possibly happen, but one judge in Dungannon, at the end of a very famous case, took the solicitors aside and told them that that was exactly what he thought they were doing. Clearly, they can string it out for a long time when they perhaps know full well that their client is as guilty as sin. There has to be a system that is absolutely foolproof and that stops that happening. The solicitors get the full fee on the basis that the case will run for two weeks when, in fact, it will run for half an hour. That is why they are doing it. They know full well that it is going to run for only half an hour, but they claim the fee according to the rate for the much longer case. They know that, somewhere along the line, very quickly, there is going to be a guilty plea, but they want to keep the case in the system as long as possible. Between the changes in legal aid and this, will that misuse of the system be completely stopped?
Mr Matthews: I think that that is probably our aspiration. This work is going forward in parallel with the work on legal aid, and we are in close contact with the guy who is doing that work. They are obviously two separate pieces of work, but we are hoping that the two things together will address that specific issue.
Ms M Campbell: I should add that, when we had the discussion with offenders, they were able to confirm that their defence solicitors were making them aware of the option of pleading guilty and that there was likely to be a discount available for doing so. That was happening, but what the offenders were saying was that what most motivated them, because they obviously instruct their defence, was knowing how much evidence existed against them. That is why we are putting a lot of emphasis on that early engagement and early disclosure of what the evidence is against the person. If there is clear CCTV footage showing the person at the scene and doing what it was claimed they had done, it is much more likely that they will admit their guilt at that point.
Mr Wells: I would love to think that all solicitors are telling defendants, "Look, there is huge evidence against you. My advice is to plead guilty now. I am going to have a savage cut in my fee, but that is the best thing for all concerned." I would love to think that that is going on, but I am not convinced that it is.
Have we any idea of what the savings — in time and money — would be for the system if everyone entering a late guilty plea pleaded guilty at the first opportunity?
Ms M Campbell: We do not have a figure, but we would estimate that it would be considerable. As well as the cost saving, it would remove a huge burden from victims and witnesses.
Mr Wells: There would be no allegation of plea bargaining here.
Ms M Campbell: No.
Mr Wells: I am taking it from the victims' perspective. Would there be any thought that deals were being done to get an early guilty plea and get the case out of the system so that the person gets a reduced tariff for what could be quite a serious offence?
Ms M Campbell: There was quite a bit of discussion when we appeared in September on that point, and the Committee flagged up to us the risk that, even if that were not the case, it could be the perception. We amended the consultation document and sought to make very clear that that was not what was being envisaged.
The Chairperson: Is that why you propose that the discount level be described at sentencing as opposed to at the very start of the case?
Ms M Campbell: Yes, we do not want anything that looks either as though plea bargaining is going on or as though any form of coercion is going on. Someone reserves the right to plead not guilty the whole way through a case if they so wish. That is their right, and they are entitled to do that. We are targeting the people who plead guilty late on in the process and getting them to do so right at the outset, because that in itself could make substantial changes. You mentioned the percentage of cases in which guilty pleas are, ultimately, submitted.
The Chairperson: The key change there, surely, is that the defence team has to state to the court that it has advised its client that now is the time to plead guilty if you are guilty, because this is what you will be entitled to. Is it going to be built in that the defence team will have a requirement to advise its client that, if you plead guilty now, this will be the benefit to you of doing so? By not doing that later in the stage, you are going to lose those entitlements of discount?
Mr Walker: In terms of defence engagement, that is obviously an important issue, and one of the things that we will look at in designing the scheme will be to ensure that that takes place.
Mr Matthews: Solicitors would say that it is already part of what they consider to be their professional standards to make a client aware of the fact that an early plea is beneficial in terms of sentencing if they are guilty, but they would always also temper that with the basic right that, if you want a trial, you are entitled to one. As Maura said, the balance between coercing someone into pleading guilty and maybe tipping the balance for someone who is, perhaps, vulnerable and who may be susceptible to the influence of a solicitor, who is a very influential person.
The Chairperson: I want to get clarity on it. When the director of the PPS was here, he made the point that he would want there to be a requirement on defence lawyers to tell their client about the discount that is available for early guilty pleas and for those defence teams to then tell the court that they have carried that out. If the judge is not going to say at the start of the proceedings that this is the level of discount you could be entitled to, someone needs to. I can see the argument why, at sentencing, the judge would say, had you pleaded guilty at this stage, you would have got this discount. If they are not going to do it at the start of a case, surely the defence team needs to be required to do that and advise the court that it has done that.
Ms M Campbell: We can look at that.
Mr Wells: The Chairman has prompted a very interesting point here. I am butting in yet again, but I will keep silent for the rest of the afternoon. A financial adviser has to give a set of words from the Financial Services Authority to every client, and it is illegal to engage in any business without doing that. Surely, there must be a form of words that could be given to every defence team that must be read and signed by the defendant. I have to be honest and say that, quite recently, I was involved in a court case. My defence team never suggested to me that there was any benefit. They never mentioned a guilty plea at the start. It was unheard of. I am not saying that I got particularly bad advice. I have been involved with many constituents in similar situations, and I have never heard of anyone being advised to make an early guilty plea, and I wonder why. Therefore, I suggest that there should be a form of words that the client has to sign to say that they have been advised on what happens if they plead guilty now. If they then decide to go ahead, if they honestly believe that they are not guilty, and obviously a percentage are not, that is a different matter. However, I am far from convinced that solicitors and barristers regard it as their role to advise on an early plea.
Mr Anderson: Thank you for the presentation. The Law Society and the Belfast Solicitors Association seem to be setting out their stall. They are saying that this concerns the fundamental principle of the presumption of innocence. Are their views in some way at variance from those of the defenders of cases, as you called them, who you have spoken to? From reading that, they do not seem to want to come on board and take on what Mr Wells said. They can stretch out a case to the very limits.
As Mr Wells asked, how do we get clarity? How do we get defendants to be encouraged to come forward for early guilty pleas when maybe there are these people in the association of solicitors and the Law Society who appear from these responses not to be fully on board? Am I reading this right?
Ms M Campbell: It is difficult to speak on their behalf. We engage regularly with all our stakeholders as we take these sorts of proposals forward. I suppose that they would argue that —
Mr Anderson: These are the main players.
Ms M Campbell: These sorts of things are already taking place, in which case I do not see how they could object to the sort of duty that has been talked about. We could look at the idea of creating a requirement for legal representatives to say to their client that discount may be available for an early guilty plea. What we cannot do is have them say precisely what that discount might be, because, in light of the consultation feedback, we do not propose to move to a statutory discount scheme. However, we are happy to take the point and redevelop —
Mr Anderson: From the outset here, looking at this, there may be difficulties. As Jim has already said, we need to get clarity and certainty around this in relation to these early guilty pleas and how people could be encouraged — for want of a better term — to come forward when they are, as a lot of the percentages there tell us, obviously guilty, and the percentage show they were pleading guilty. We do not want solicitors and those in the legal profession to be drawing this out, as has already been highlighted. It is a big issue.
Mr Walker: The submissions from the Law Society and the Belfast Solicitors Association indicate that they comply with the professional obligations to advise the client appropriately and at appropriate stages. However, as Maura said, we will continue to engage with the profession in developing the early guilty plea scheme to make sure that they are on board. Obviously, defence engagement will be one of the key issues. Having presented a case early, it will be about getting buy-in from the defence to work with that.
Mr McCartney: I have a couple of questions. Is the figure of 85% of people pleading guilty high compared to other jurisdictions?
Mr Matthews: We can get back to you on that. I am not sure. When we did the initial research, it did not leap out as being particularly high. It is partially because of the sort of prosecutorial test before a case even gets near the court, which is quite strict.
Ms M Campbell: The difference between us and other jurisdictions is that there seems to be more of a tendency for people to plead guilty at an earlier stage. That avoids a lot of the process that we are tied up in.
Mr McCartney: It may have changed over the years, but there used to be a tendency that, on the first day in court, the charge was always, perhaps, the most severe. A person could have ended up, on the first day in court, being charged with attempted murder, but over when the evidence is then presented it has gone to actual or grievous bodily harm. You give us the statistical analysis, and we have to start drilling down into it. A person who you think might go for an early plea might say, "I want to test the evidence first." And then they see the evidence and might be advised, "I feel that this is grievous bodily harm rather than attempted murder because of the circumstances."
A famous lawyer once said that we cannot have courts in which the view is, "If you are innocent, what are you doing in that dock?" We cannot allow that. Nearly a third of all defendants dealt with in the Crown Court in that period changed their plea during proceedings. You need to know at what stage and for what reason. In fairness to the Law Society, it obviously works from the presumption of innocence; that is its duty and responsibility. All options should be open to both the defendant and the Public Prosecution Service. You do not want a situation where someone feels overwhelmed if a solicitor or barrister says, "You should plead guilty, and I can get you 10 years instead of 20 years", and they end up doing that too early through bad advice. It is about trying to drill down. These are only observations. I know that this is dealt with in the Bill, so we will get a better chance to tease it out, but it is the same with committals. How many cases go to oral committal in a given year?
Mr Walker: I do not have the exact figures to hand, but I think that the consultation paper sets out average figures from 2007 to the end of 2010. I think that it was somewhere in the region of 100.
Mr McCartney: Out of how many cases?
Mr Walker: Roughly 100 a year were listed for oral hearing for preliminary investigation.
Mr McCartney: Out of how many?
Mr Walker: Out of probably about 2,500 that were listed for committal proceedings. I can provide you with that information.
Mr McCartney: So it is a low enough number.
Your opening paragraph says:
"Delay has a considerable impact on victims, who report that they feel as though their lives have been 'put on hold' until the case reaches a conclusion."
It would be unfair to say that the reason for the delay in the courts is that people opt for oral committal hearings.
Mr Walker: It is fair to say that it is a small number. The issue, I think, is that when it is listed for that type of hearing, regardless of whether it runs as that, the witnesses, and so on, have to be lined up, and that is what creates the delay in the system.
Ms M Campbell: If you are just looking at what will speed up case processing times, you perhaps would not give it a high priority. The reason why we wanted to fast-track this issue is that we got unanimous feedback from victims' groups saying that taking it out of the process would benefit victims.
Mr McCartney: That is understandable if that is their experience and their case was the case that had that. It is set out there that it is sometimes used as a tactic to get cross-examining witnesses early. However, there are cases where early cross-examination of a witness could save a Crown Court trial. One of the cases that we have talked about here is the Haddock case. Perhaps if there had there been rigorous cross-examination of the two people in the Haddock case, we might have saved ourselves one of the longest-running trials in the North and a lot of money. We have to watch that we do not legislate out something that can be of benefit. What we have to do is to protect ourselves so it is not seen as a mechanism to do something that it was not designed to do.
Mr Matthews: Absolutely. Without commenting on any particular cases, a case that is ill-founded or that should never have been brought should be tested out. Once you get to the Crown Court, there is also the "no bill" procedure, which looks at pretty much the same thing to see whether there is a prima facie case. So, in essence, you could argue that committal is that, and then potentially you can run the "no bill" as well. Our view is that the "no bill" procedure is probably sufficient to protect people against that kind of ill-founded case. Over the sort of period that Graham mentioned, I think that something like eight cases were turned away at that stage. However, I think that they probably would have been turned away at "no bill" anyway had committal not been there.
Ms M Campbell: That was eight cases out of 7,355. So, it was a very small percentage.
Mr Elliott: I have just one very quick point. Thanks for the presentation. I am fully behind early guilty pleas, particularly for the victims' sake. I have one concern. Maybe it is unfortunate that the reform of the legal aid system is happening around the same time. There is talk — Mr Wells alluded to it — about fixed fees or fixed pay rates coming in for cases. Mr Wells indicated that maybe, prior to this, some legal teams were suggesting that court cases go the full distance maybe because it got them additional finance. Do you have any concerns about legal teams being more forceful with their clients in suggesting that they should enter an early guilty plea because they have a fixed rate for their legal fees? Obviously, if they got away with getting it over and done with quickly, that would save them having to go the full distance. That is the only concern that I have around it.
Ms M Campbell: I think that you are right. In trying to remove one perverse incentive, we do not want to create a new one. I see exactly the point that you are making. Some of our stakeholder groups have cautioned that, particularly with vulnerable adults and children, informed decisions must be made. Where there is an issue of vulnerability, there should be support for that individual. In some cases, that might be through an appropriate adult or other support that is available to people. It is difficult for us to say what solicitors would or would not do, or how their behaviours might be influenced, but I think —
Mr Elliott: Surely it needs to be taken into consideration?
Ms M Campbell: It is the sort of thing that we need to consider.
Mr Matthews: One of the things that we are expecting to see is not necessarily that the number of people who plead guilty will increase, but just that the stage at which they plead guilty will come earlier. For example, if we were to see an increase in the number of people pleading guilty, we might become suspicious that there was something going on in the system that was not what we expected.
As Maura was saying, there are protections in the system for vulnerable people. The police identify people. We would hope that there is enough there already that that would not be the case. Also, if the solicitors were here, I am sure that they would say that their first duty is to the client and they would not expect them to behave like that. However, I can understand, given some of the things that have been said and some of the things that have come up, even with the people that we have been talking to, that that suspicion would be around.
Mr Elliott: Can it be taken into consideration? I have not seen it anywhere in the consultation document.
Ms M Campbell: I think it may be something that we need to explore in more depth with our colleagues working on the legal aid side who are going to be consulting on the potential introduction of a flat fee over the next couple of months. Maybe that is something that needs to be built in through that consultation.
Mr Matthews: As well as that, we have a group of stakeholders who are looking at that and also the wider speeding up justice reforms. The Law Society is represented on that. We could probably have a conversation with it about that, because I am sure that it would not want that sort of behaviour to be — [Inaudible.]
Mr Lynch: I have a quick point. Maura, you said that the preferred option was option 2, and that meant making some procedural changes. Can you elaborate a wee bit more on what those procedural changes would be?
Ms M Campbell: Certainly. It goes with the grain of a lot of the things we have been trying to do through the speeding up justice programme. It is this idea of getting the early decisions made: deciding what should be in the case file in the first place; being case-ready when charges are brought; and ensuring better co-operation between the prosecution and the defence in allowing those decisions.
Mr Matthews: You could boil it down to the idea that we do not think it reasonable to expect someone to plead until they see the case against them and, at the minute, that does not often happen at an early stage. So we recognise that some of the deficiency in getting early guilty pleas is because it is probably not reasonable to expect someone to plead. Part of what the procedural reforms are about is, as Maura says, this idea of case-ready charging, so that, when the charges are brought, there is a file in front of the person that outlines the case that the state will be bringing against him and gives him a chance to make an informed decision at an earlier stage. That is a reasonable way to approach it.
Ms M Campbell: I am slightly nervous of mentioning it but I suppose that statutory case management is something that could assist with that as well. The Minister indicated the other evening that that is something that we are seriously looking at. I do not think that we are ready to talk in detail about how that might operate, but it is something, again, that could be brought into this consideration as well.
Mr Lynch: Just a quick final point: in terms of the debate we had and the inquiry that we had into victims and witnesses, if there were early pleas, would they be kept informed of those and why they are made? Is that the intention to build into what we discussed the other night? It would be important that the victims and witnesses would be kept up to date as to why a guilty plea was offered at an early stage, etc.
Ms M Campbell: I think that a part of this is about ensuring that victims and witnesses understand why things are happening. Generally improving communication for victims came through as a very strong theme in your report. I agree absolutely with that.
The Chairperson: I thank you all very much for coming to the Committee this afternoon. Have a good break away from us.
Ms M Campbell: I am afraid that I am not going anywhere just yet. I am joining Gareth for the next session.