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IMPROVING PRACTICE
CHAPTER 7 FULLY INFORMING THE DEFENCE
Introduction
7.1 In order to prepare their case and advise their client what plea to tender, defence lawyers need notice of the case to be presented against the accused and an idea of what will happen to him should he be found guilty.
Investigating and Preparing the Defence Case
7.2 While the Crown may have statements which the police have taken from witnesses, and may have interviewed the witnesses and prepared precognitions of their evidence, these documents are not routinely intimated to the defence. The defence solicitor is expected to interview the witnesses to ascertain the case against the accused 108.
Witness Statements
7.3 The precognition prepared by the procurator fiscal after interviewing a witness has traditionally been regarded as confidential to the Crown and to the witness 109. It was generally accepted in consultation that that should remain the position.
7.4 Solicitors practising in the High Court were much more interested in obtaining copies of the statements given by the witnesses to the police. It is becoming increasingly common for copies of some statements in a case to be either lodged in court as productions or given to the defence to present a full picture. Whether that happens depends upon the case. There is no standard practice. That is largely because statements are taken in a number of different ways and in a variety of circumstances, and because their quality is variable. Some are signed by the witnesses and others are not. Witnesses' expectations of the use that will be made of their statements vary.
7.5 For more than 25 years there have been discussions between the Crown and the police about the way in which statements are taken and the standard of these statements. Some of these discussions resulted from meetings between the Crown and the Law Society of Scotland, who were anxious that a practice should be established that would produce statements that might routinely be made available to the defence as their notice of the evidence of the witnesses. During that time there have been a number of changes and improvements in police practice in taking statements. However, many problems remain in relation not only to the form of statements but also to the impact any changes in practice, particularly changes which introduced more formality into the process, might have on the willingness of some witnesses to give statements. It may be that, in return for receiving statements, the defence would require to forego the right to precognosce those witnesses. The discussions show no sign of reaching a stage where the practice might change. A concerted effort should now be made to try to resolve this issue once and for all. It may not be possible to change the practice. However, a working party should be established, including representatives of the Scottish Executive Justice Department, the Crown, the police and the professional bodies representing criminal practitioners, to try to devise a scheme for the taking of witness statements that would enable them to be given to the defence routinely. Even if there are sound reasons why such a scheme could not be applied to all witnesses, it would undoubtedly be beneficial if it could be applied to a significant number.
The Role of the Prosecutor
7.6 Meanwhile I proceed upon the basis that there is unlikely to be any change in current practice in the immediate future If the defence are to have an adequate opportunity to fully investigate the case that is to be presented against the accused by interviewing the witnesses and building up a picture of the prosecution case, they must be given details of the witnesses shortly after the initiating proceedings in the Sheriff Court. The procurator fiscal should also provide to the representatives of the accused information about material developments in the investigation of the case as they occur, and let them have access to all relevant evidence as it becomes available. When the indictment is served upon the accused, a courtesy copy is sent to the solicitor instructed by the accused. Along with that copy the defence solicitor should receive a copy of all the documentary productions which have not already been received. Every effort should be made by the Crown to have all the evidence to be used at the trial, including forensic science evidence, assembled prior to the service of the indictment. Any other material coming into the hands of the Crown thereafter should be intimated to the defence immediately. The Quality and Practice Review Unit Report makes a number of recommendations designed to achieve those ends 110.
7.7 The normal rule should be that intimation of all material to be used by the Crown at the trial should be given to the defence with the indictment. Between service of the indictment and shortly before the procedural hearing, it would remain open to the Crown to intimate additional material, but that material should be admissible only with leave of the Court, a situation similar to that presently governed by section 67 of the 1995 Act. What the period between service of the indictment and the procedural hearing should be is considered in Chapter 9. Whatever that period is, there should be a deadline, a number of days prior to the procedural diet, after which it should not be open to the Crown to intimate or lodge additional witnesses or productions except on the higher test of cause shown to the satisfaction of the Court. In other words there should be a recognised deadline, prior to the procedural diet, by which the Crown should routinely have intimated all witnesses and productions, and it should be incumbent on the Crown to justify any departure from that deadline.
Informing the Accused of the Likely Sentence
7.8 While following the practice outlined above should enable an accused and his advisers to take a decision whether to go to trial or not prior to the procedural diet, it does not necessarily follow that the decision will be made at that stage. My discussions with practitioners and with some former prisoners indicated that, given a realistic prospect of acquittal, an accused person is likely to go to trial, but, if faced with little or no prospect of acquittal, what he wants to know above all is the sentence that is likely to be imposed, and hopes that it will be less than anticipated. His decision on whether to plead guilty and when will inevitably be informed by his understanding of the likely sentence 111.
Criminal Procedure (Scotland) Act 1995, Section 196.
7.9 Since 1995 the Court has had statutory power to modify a sentence in light of a plea of guilty 112. Section 196 of the Criminal Procedure (Scotland) Act 1995 is in these terms:
"(1) In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a Court may take into account -
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which that indication was given.
(2) Where the Court is passing sentence on an offender under section 205B(2) of this Act and that offender has pled guilty to the offence for which he is being so sentenced, the Court may, after taking into account the matters mentioned in paragraphs (a) and (b) of sub-section (1) above, pass a sentence of less than seven years imprisonment or, as the case may be, detention but any such sentence shall not be of a term of imprisonment or period of detention of less than five years, two hundred and nineteen days."
There is as yet little general guidance from the Criminal Appeal Court on how section 196(1) should be applied in practice. It has been confirmed that there is no obligation on the sentencing judge to discount the sentence in all cases where a guilty plea is tendered 113. Each decision has been confined to the particular circumstances of the case in question.
7.10 In practice many judges regularly discount the sentence and say specifically that they are doing so in the light of a number of factors, including a plea of guilty and the stage at which it is intimate 114. Perhaps there is some guidance to be found in sub-section (2), which allows for the otherwise mandatory sentence to be discounted by up to 20% where a plea of guilty is tendered. In England and Wales there is a generally understood practice of discounting the sentence by between one-fifth and one-third where a plea of guilty is tendered 115, and the sentencing judge is obliged by statute to say that he has given credit when he passes sentence 116. In Scotland, however, it is generally impossible to tell what discount has been applied, even when the judge says that he has given credit for the plea of guilty. The closest a judge is likely to come to indicating the discount is to tell the accused what sentence he "would have been entitled" to impose but for all the mitigating factors that have been taken into account.
7.11 Two other possible approaches to the question of how to make clearer to an accused the likely outcome of pleading guilty, which are not mutually exclusive, were raised in the course of my consultations.
Open Plea or Sentence Bargaining
7.12 There was a surprising amount of support for the idea of open plea or sentence bargaining. A preliminary diet is an obvious place for this to occur. While one might not expect the Crown to say definitely that a plea of guilty to something less than the full indictment might be acceptable, it would be possible at the preliminary diet for the Crown to indicate what potential they saw for a plea of guilty 117. In response the accused might seek to know what the sentence was likely to be if he was convicted on the indictment after trial, and what it would probably be were he to plead guilty to a reduced charge. Parties could present a sufficient outline of the Crown narrative in support of the charge and the defence mitigation to enable the judge to indicate the likely sentence. The same exercise could be undertaken in chambers. A scheme of this nature, but without any indication of what the sentence might be in the event of conviction after trial, has been proposed for England and Wales 118.
7.13 A number of those who commented or made submissions to me expressed anxiety about the possibility of an accused being influenced by this process to plead guilty to a charge, which he actually denied, for the sake of minimising his sentence. Some felt uncomfortable about the very notion of debating sentence in this way in public. Others thought that there were many prospective pitfalls, including the potential for the Crown narrative or the plea in mitigation, when the plea was formally recorded, to highlight something which did not seem so important during the trailer, or even to reveal something which was not mentioned initially by the parties but which might lead the judge to alter his view of the case materially.
7.14 Such a system is also likely to increase the prospects of legal representative and client having to part company. Such hearings could take place before a different judge from the one who would preside over the trial should no plea result. On the other hand, one would expect the accused to be represented by the same practitioner at the sentence discussion and at the trial. In some cases it may be difficult for the lawyer to give proper advice to his client without the risk of becoming compromised by developments in the plea bargaining discussions which might require him to withdraw from acting. I am not persuaded that open sentence bargaining is an appropriate practice for our jurisdiction.
Structured Sentence Discounting
7.15 Quite separately there is strong support among practitioners for a more structured system of discounting the sentence where an accused person pleads guilty. It is generally acknowledged that, the earlier the plea of guilty is tendered, the more worthy it is of a discounted sentence 119. Should an accused offer to plead guilty at an early stage using the procedure under Section 76 of the Criminal Procedure (Scotland) Act 1995, he is effectively accepting his guilt without awaiting a full inquiry and without putting the Crown case to the test of that inquiry. The idea of a substantial discount for such acceptance of guilt and acknowledgement of responsibility is widely supported.
7.16 Apart from indicating an acceptance of responsibility, a plea at an early stage also enables witnesses to be set at ease and advised that they will not require to relive what for many are events they wish to forget 120.
7.17 There was also wide support for some discount in the sentence whenever an accused pleads guilty. Should the plea be tendered at a fairly late stage, such as at the trial diet, there is a view that the contribution that that makes to the efficiency of the criminal justice system, and the very avoidance of the need for those affected to give evidence, merit some credit. Between these two stages might be the preliminary diet, and the possibility of a plea of guilty at that stage.
Judicial Discretion in Sentencing
7.18 The tradition of judicial independence in Scotland runs counter to the idea of any formality in the sentencing process. There have been statutory innovations upon that independence, some of which are less controversial than others. The obligation to impose a life sentence for murder 121 may be seen as less controversial than the obligation to impose a mandatory sentence of a specific period of imprisonment for repeated drug trafficking 122. Judges tend to feel uneasy about any restriction upon their discretion in sentencing. They are concerned about being obliged to discount a sentence which they consider appropriate and necessary for the protection of the public, for example, from a serious sex offender.
7.19 On the other hand, as I have noted above, effect is given daily to the terms of section 196 of the 1995 Act. In the exercise of their discretion in applying section 196, judges regularly have regard to the fact that a plea of guilty has been tendered, the stage at which the plea is tendered and the circumstances in which it is tendered. The section, particularly subsection (1)(b), the circumstances in which that indication was given is framed in very broad terms. The earlier a plea is tendered, the more likely it is to indicate an acceptance of responsibility and to justify the highest degree of credit.
7.20 Appeals against sentence are regularly presented to the Criminal Appeal Court on the ground that the sentencing judge or sheriff has failed to take account of the factors in section 196(1) or to give them proper weight. It is simply a matter of time before that Court has a suitable opportunity to exercise its power to give general guidance to sentencing judges about the factors that it is appropriate to take into account in applying the section. There are already identifiable controversial issues on which it would be helpful to have the views of the Appeal Court. For example, there are differing views about whether being caught red-handed should reduce an accused person's prospects of being given a discounted sentence, since there is every possibility that he could be as willing to accept responsibility, or as remorseful, or indeed as willing to avoid the need for witnesses to give evidence, as a person against whom the case might be much more difficult to prove.
Strengthening Section 196
7.21 I do not favour restricting judicial discretion in sentencing. I, therefore, do not favour a more structured system of sentence discounts. The provision of guidance by the Appeal Court about the factors that are of relevance to the application of section 196(1) could add a measure of certainty to sentencing practice that might lead to more pleas of guilty being tendered prior to the trial diet. Of greater significance in achieving that objective, however, could be the one statutory amendment that I recommend on this issue. If the defence receive full details of the prosecution case prior to the preliminary diet, the accused should be able to decide upon and offer for consideration by the Crown any plea of guilty he proposes to tender prior to the trial diet. Save where the Crown fail to provide full details of the case timeously or decide at the trial diet to accept a plea which they previously rejected, there will seldom be justification for a plea of guilty being tendered at the trial diet. To make it clear that pleas of guilty tendered earlier will generally result in a lesser sentence, and that pleas of guilty tendered at the trial diet generally will not, the Court should be obliged to take factors (a) and (b) in section 196(1) into account where the plea is tendered prior to the trial diet, and should be entitled to disregard the fact that the accused has pled guilty when the plea is tendered at that diet. That could be done by substituting "shall" for "may" and by adding at the end of (1) the words "but may leave these factors out of account if no indication of the intention to plead guilty was given prior to the date assigned for the trial". That amendment recognises the obligation to take account of an indication of an intention to plead guilty, but leaves the way in which that is done entirely to the discretion of the sentencing judge 123. It also leaves to his discretion the question whether to give no discount where the plea is tendered at the trial diet.
Additional sentencing possibility
7.22 One submission made suggested an additional sentence option in cases involving substantial mitigation. While not necessarily confined to cases where a guilty plea is tendered, this option would normally be restricted to such cases. For that reason I mention it in this context. The suggestion made is that part of a sentence might be suspended to reflect the discount appropriate in respect of the mitigating factors. For example, the court might consider a sentence of six years imprisonment appropriate for a particular offence, but might restrict the period to be served in custody to four years, with two years of the sentence suspended because of mitigating factors. The effect of such a sentence would be that the accused would be subject to the conditions of licence until the expiry of the six-year period. Should he breach the licence, he could be recalled to custody to serve the remainder of the full custodial period. The accused would have the benefit of earlier liberty; the element of public protection provided by licence would remain in force for the full period of the sentence. I have not considered sentencing policy to be a matter within my remit. On the other hand this particular suggestion would give the court additional power to reflect the provisions of section 196. Consideration should be given to this as a possible additional sentencing option.
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