Should we encourage more and earlier guilty pleas in order to address overcrowded criminal court lists and the consequent delays in processing criminal cases? Embedded in this question are several moral and practical issues that I will try to tease out in this post. The question itself comes to mind as a result of a recent RTE Prime Time programme on delay in the criminal justice system. The Minister for Justice, who appeared on the programme, was obviously pinning his hopes on the appointment of additional judges, with more than 40 promised between now and the end of next year. The Courts Act 2023, recently signed into law, provides for the first tranche of these additional appointments. Presumably steps will be taken to ensure that registrars and courtrooms are available as well.
Of course, it has long been recognised that delay is a complex problem that cannot be resolved solely by appointing more judges. Unanticipated adjournments are also a significant contributing factor. A system of preliminary trial hearings, finally introduced in the Criminal Procedure Act 2021 (effective from February 2022), was long touted as a solution to that problem. Such hearings were never intended as a panacea, and there seem to be mixed views on how well the system has worked so far. It would obviously be beneficial to have an empirically-based review of these hearings once they have been in operation for two years or so but that, unfortunately, is something we are very had at doing in this country.
The workload of the Central Criminal Court has increased significantly in recent years, but the Circuit Court still deals with the vast bulk of serious crime. As mentioned by one contributor to the Prime Time programme, the current system of Circuit Court “criminal sessions” that last a few weeks at time and of which there are relatively few in the course of a legal year is no longer fit for purpose. In more populous areas there should be a Circuit Criminal Court permanently in session. This, in turn, may necessitate a review of prosecution arrangements outside Dublin with an increase in the number of state solicitors and panels of prosecuting barristers instead of “county prosecutors”, at least in areas where there are busy criminal courts. Delays in forensic analysis, especially of drugs, seem to be another factor contributing to adjournments, though apparently it is hoped to reduce those delays in the near future.
However, our concern here is with guilty pleas, a topic that also featured briefly in the Prime Time programme. More guilty pleas entered earlier might enable trials to proceed more expeditiously, or so the argument would run.
Guilty pleas have long been a feature of the criminal justice systems in common-law countries, but they were largely unknown in civil law systems. Some leading comparative law scholars, notably Professor Mirjan Damaska, have attributed this to different visions of the purpose of litigation. In civil law systems, it is about discovering the truth, something a court must do for itself rather than, for example, rely on a confession. In common law countries, on the other hand, litigation is viewed as a form of dispute resolution. A criminal prosecution creates a dispute between the state and the accused. If the accused admits guilt, there is no longer a dispute to be resolved. No trial is then necessary, and the court can proceed to sentence. However, there has been growing convergence between common law and civil law criminal procedure in this respect. Some continental European countries now permit agreements or confessions (such as the Absprache in Germany and the pattegiamento in Italy) which, while not exactly equivalent to guilty pleas, have the effect of simplifying and abbreviating criminal proceedings.
Guilty pleas are primarily of utilitarian value. They free up court resources and, in some instances, they save victims from having to testify and undergo cross-examination at trial. Neither of these claimed benefits has gone unchallenged. In particular, we have been warned against too readily assuming that victims invariably welcome pleas. Some might prefer to be able to testify in the course of a trial about their experience. Victim impact evidence at sentencing probably compensates to some extent for this. It used to be said that a guilty plea may indicate remorse and that this was one justification, if not the primary one, for granting a sentence discount. Undoubtedly, in some cases, a plea may reflect genuine remorse, but the more predominant and, it is suggested, better view today is that remorse should be treated as a separate mitigating factor, assuming a court is satisfied of its authenticity.
A guilty plea is probably the most securely established and widely recognised mitigating factor in the common law world. The principle, or theory, is that the defendant is being rewarded for having waived his or her constitutional right to trial. Yet, there are some who question the compatibility of the guilty plea discount with the presumption of innocence, and one can see why. Suppose two defendants are charged with having participated to an equal degree in a robbery and the appropriate headline sentence in each case is six years. One pleads guilty and gets a one-third reduction, bringing the final sentence down to four years, while the other is convicted following trial and gets six years. This differential may be rationalised by saying that the first is being rewarded for his guilty plea (the standard analysis) or that the second is being penalised for having exercised his right to trial. This is why some critics of the discount argue that it should either be abolished or else kept as low as possible (perhaps to around 10 per cent) lest it impose undue pressure, even on innocent defendants, to plead guilty.
The discount is certainly an incentive, but as the American political scientist, Ruth Grant, reminds us, an incentive should not always been seen as a bargain or exchange of benefits. It can also operate as a form of power. If an electricity company offers me a 20 per cent reduction on my bills for the next year provided I change over to it, it is holding out a mutually beneficial incentive (though I doubt if many of us have been offered that particular one in recent times!). But consider the recent Canadian case of R v Naslund [2022] ABCA 6 which attracted some international attention because the defendant was charged with murdering her husband who had abused her for over 30 years. If convicted of murder, she would have been sentenced to life imprisonment without the possibility of parole for 25 years. However, as a result of what was effectively a plea bargain, the prosecution and defence made a joint submission to the judge recommending 18 years’ imprisonment in return for a plea to manslaughter. That was the sentence imposed, and she later appealed against it, a very rare occurrence where there has been an agreed sentence. She succeeded. The Alberta Court of Appeal, by a majority, reduced the sentence to 9 years, and the judgment is interesting for its explicit acknowledgement of the power imbalance that can exist between prosecution and defence in such cases. Here, the defendant was faced with a choice between serving 25 years, and possibly longer, if convicted of murder, and being sure of 18 years (still a very long sentence in the circumstances) if she accepted the deal offered by the prosecution. The Court said (Para. 124):
“It is within the discretion of the prosecutor to accept a guilty plea to a lesser-included offence, and that power risks leading to a coercive bargain where the alternative involves the accused having to gamble at trial with a possible mandatory life sentence.”
The Supreme Court of Canada had previously made a rather similar point in R v Anthony-Cook [2016] 2 S.C.R. 204, para. 52. This situation is unlikely to arise in Ireland where the practice of jointly agreed recommended sentences is unknown, but it still has a lesson for us. Where the objective is to encourage more pleas, there may be a temptation to increase the level of discount. That would certainly strengthen the incentive to plead but it might also increase the risk of innocent defendants pleading guilty. Parenthetically, it should be noted that increased discounts can also encounter public and political opposition as occurred in England and Wales in 2010 when the Ministry of Justice proposed increasing the maximum discount from one-third to one-half. It was estimated that this would lead to a reduction of 3,400 prisoners over a period of some years. However, following media and political opposition, the proposal was quickly dropped.
Let us now consider how earlier guilty pleas might be encouraged. The expression “cracked trial” may not be used very much, if at all, in this country, but is a well-known expression in England and Wales. There it refers to a situation where a case is set down for trial, but the defendant pleads guilty at a very late stage, often on the day of the trial. This problem received considerable attention from the Royal Commission on Criminal Justice which reported in 1993 (Chap. 7). The Commission recommended a graduated system of discounts, with the amount depending on the time at which an intention to plead guilty was first indicated. It further recommended that it should be possible for a defendant to seek an indication from the trial judge as to what the highest sentence would be if the defendant pleaded guilty at that point (which might be before or during the trial). Both recommendations bore fruit. The (English) Criminal Justice and Public Order Act 1994 (s. 48) provided that when sentencing a defendant who pleaded guilty, a court should take into account “(a) the stage in the proceedings for the offence at which the offender has indicated his intention to plead guilty, and (b) the circumstances in which this indication was given.” This is now codified in the Sentencing Act 2020 (s. 73). Further, the Court of Appeal in R v Goodyear [2005] 1 W.L.R. 2532 relaxed the strictures imposed by R v Turner [1970] QB 321, and allowed for sentence indications to be given on the application of the defendant, though subject to various qualifications and safeguards. See the more recent observations of the Court in R v Egan [2022] EWCA Crim. 1751 (and the comment by Peter Hungerford-Welch in [2023] 5 Crim. L.R. 375).
Here in Ireland we followed suit, but only in respect of the first recommendation. Section 29(1) of the Criminal Justice Act 1999 is clearly based on s. 48 of the English Criminal Justice and Public Order Act 1994, though phrased in more discretionary terms. Sentence indications of the Goodyear variety are frowned upon here, though they are not illegal. Perhaps the time has come to revisit the possibility of allowing such indications in Ireland. But that is a topic for another day.
The problem with s. 29 of the 1999 Act is that, apart from the discretionary element (a court “if it considers it appropriate to do so, shall taken into account…”), it says little of substance. Like its English predecessor, it merely provides that a court must take account of the stage at which the defendant indicated an intention to plead guilty, and the circumstances in which the indication was given. It is to be inferred that early pleas should attract more generous discounts than later ones, but the section does not say even that. Further, it offers no indication whatever as to the appropriate level of discount. That is left to the courts.
It had long been assumed that a guilty plea can earn a reduction of one-quarter to one-third of the otherwise deserved sentence, but it was only with the establishment of the present Court of Appeal that more formal indications of appropriate discounts were given. As a result of dicta in Molloy [2016] IECA 239, T.D. [2021] IECA 289, Whelan [2018] 142 and other cases, it seems clear that the discount should be in the range of 10 to 30 per cent, depending on the stage at which the plea is indicated.
If the discount is to function effectively as an incentive to plead guilty as early as possible – without losing sight of the ethical issues mentioned earlier – it must be clearly and formally expressed, but also graduated to ensure that early pleas are rewarded significantly more generously than last-minute ones. This can be done most effectively by means of a formal guideline, though failing that, it might be effected through an appeal court judgment dealing primarily and in detail with that principle (in the way, for example, the Court of Appeal considered the suspended sentence in W.D. [2020] IECA 145 and some other cases). However, it is also a matter to which the Sentencing Guidelines and Information Committee, now fully operational under the aegis of the Judicial Council, might accord priority.
Even if formalised in this way, the discount can have the desired effect only where there is some degree of certainty or predictability as to the headline sentence to which it will be applied. It is all very well to say that an early guilty plea will earn a one-third discount, but one-third of what? A defendant who has no idea of what the headline sentence is likely to be may be more tempted to opt for trial. The corpus of guideline judgments so far delivered by the Court of Appeal and Supreme Court are of considerable assistance in this regard, though formal guidelines would be more helpful still. Defence lawyers could then advise clients with a little more confidence as to what the headline sentence was likely to be and the discount that would be granted for a guilty plea, depending on when it was indicated.
However, there is a further complication. So far, we have proceeded on the implicit assumption that the level of discount should depend solely on the time at which the plea is indicated. But that is not how Irish law currently stands. The Court of Appeal has occasionally held that the strength of the prosecution case is another relevant factor. See, for example, O’Dwyer [2020] IECA 353, para. 47. Thus, there is less credit for a plea where the defendant was caught red-handed or the prosecution case is otherwise so strong as leave the defendant with no realistic prospect of acquittal. Granted, as the Court clarified in Howlin [2022] IECA 150, para 65, every plea has some value, however strong the prosecution case. After all, the defendant is always entitled to exercise the constitutional right to trial the outcome of which can never be predicted with certainty. Having said that, the Court accepted that “some pleas are more valuable than others.”
The history of English guidelines on the guilty plea discount is instructive in this regard. The most recent guideline on the discount was issued by the Sentencing Council in 2017, earlier guidelines having been issued by the former Sentencing Guidelines Council in 2004 and 2007. The 2007 guideline provided for a reduced discount where the prosecution case was “overwhelming.” However, among the key principles of the 2017 guideline is an emphatic statement that the strength of the prosecution evidence should not be considered when determining the level of discount. This is entirely consistent with the primary purpose of the revised guideline which was not to encourage more guilty pleas but rather to encourage those who wished to plead guilty to do so as early as possible. What matters now is the stage of the proceedings at which the plea is first indicated. For further analysis, see the review by Jay Gormley and others, Sentence Reductions for Guilty Pleas (London: Sentencing Academy, 2020) available at https://www.sentencingacademy.org.uk/pdf/sentence-reductions-for-guilty-pleas.
This is precisely the policy choice that will face the Sentencing Guidelines and Information Committee or the Court of Appeal in the event that either decides to issue a formal guideline on the guilty plea discount. The answer will depend on what the Committee or Court identifies as the ultimate purpose of the discount. If it is to encourage more guilty pleas or more early pleas, the stage at which the plea is first indicated will be the most important consideration, or perhaps the only one. Retaining the strength of the prosecution case as a relevant factor introduces an ethical dimension in the sense that it treats an offender as less morally worthy of the mitigation where the prospects of acquittal following trial seem minimal. In so describing it, I am not to be taken as suggesting that this factor should continue to influence the level of discount. All depends on the underlying purpose. It would, of course, be possible to devise a guideline, rather like the 2007 guideline in England and Wales, that incorporated the strength of the prosecution evidence as well at the stage at which the plea was first indicated, and specify appropriate discounts accordingly. But any policy adopted for encouraging more or earlier pleas must always be subject to certain ethical constraints to eliminate the possibility of convicting the innocent – even if it is a case of self-conviction as a result of pleading guilty.
Sentencing, Crime and Justice 