Report Regarding Guilty Pleas in England and Wales
A recent report by the Sentencing Academy regarding pleas of guilty in England and Wales contains interesting information regarding the practice of plea bargaining across the pond. From the report:
Most defendants are convicted after entering a guilty plea, rather than following a trial. In 2019/20, 78.6% of cases concluded in the magistrates’ courts were resolved by a guilty plea (Crown Prosecution Service, 2020, p. 31). The figure was slightly lower (73.3%) in the Crown Court (Crown Prosecution Service, 2020, p. 34). Defendants plead guilty for a variety of reasons. For example, some may experience remorse and express this through a guilty plea. Many defendants perceive a high likelihood of being convicted at trial and wish to secure the reduced sentence available if they plead guilty. Others may plead guilty to avoid the stress arising from going to trial (Gormley and Tata 2020).
While not as high as U.S. guilty plea rates (which can reach almost 98% at the federal level), these are high numbers for a country where the court once wrote, “[A] confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape… that no credit ought to be given to it.” See Rex v. Warickshall, 1783. The executive summary offers some perspectives of why pleas of guilty are now encouraged under the laws of England and Wales.
Two principal justifications currently exist for offering sentence reductions to defendants who plead guilty. First, a guilty plea saves witnesses from having to attend court to give evidence. This may require multiple appearances and can be time-consuming and stressful. Second, a plea, particularly if entered early in the criminal process, conserves criminal justice system resources. The police, the Crown Prosecution Service and the court system all conserve resources when a trial is avoided. A guilty plea may be considered evidence of remorse on the part of defendants, but this factor is considered elsewhere in the sentencing methodology.
The executive summary also describes the manner in which England and Wales have created a structured sliding scale of reductions based on the efficiency considerations described above.
The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract a more modest sentence reduction. If a plea is indicated at the first stage of the proceedings, a sentence reduction of one-third of the custodial sentence should be awarded. The guideline also specifies that one-third is the maximum reduction appropriate across all cases. A plea entered after the first stage attracts a maximum reduction of one-quarter. The reduction awarded should decrease to a maximum of one-tenth on the first day of trial. The guideline includes a series of exceptions to the recommended reductions. These allow a departure from the recommended maximum reductions. For example, if there were circumstances which significantly affected the defendant’s ability to understand what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner. In addition, there is a separate regime for young defendants.
Finally, the report also briefly explores the issue of innocence and argues that the risks are low because the sentencing differentials in England and Wales are "modest."
As long as it is possible to plead guilty, there is a risk that any defendant (even if innocent) may do so, and this risk is much discussed in the academic literature (e.g. Ashworth 2015, p. 182).33 This risk increases if sentence reductions are significant. This underscores the need to ensure that defendants have access to legal representation which should serve as a safeguard – although it is not necessarily always guaranteed (McConville et al. 1994).
It is unclear what form of evidence would resolve the question of whether current levels of reduction are excessive. In many cases, the impact of the sentence reduction on time served in prison will be modest, thereby reducing the risks of innocent defendants pleading guilty simply to obtain the sentence reduction. A concrete example illustrates the point. A defendant who pleads after the first opportunity but before the day of trial is entitled to a maximum reduction of one quarter of the custodial sentence. Assuming an eight-month sentence without a plea, the sentence after a plea will be six months, half of which will be served in prison. The guilty plea reduces the offender’s time in prison by one month: they will serve three months instead of four. The question then is whether these levels of reduction create sufficient pressure on the defendant to plead guilty if he or she has a defence to the charge. Of course, the attraction of a reduction in time served does not speak to the possibility that defendants who perceive a guilty plea may result in their avoiding a prison sentence altogether (discussed later in this paper).
Research involving offenders reported by the Sentencing Council suggests that the magnitude of the reductions offered were not a significant factor affecting their decision to plead. The report notes that: ‘The main factor determining whether or not offenders plead guilty was the likelihood of being found guilty at trial’ (Dawes et al., 2011 p. 32). Although the research involved only a small number of defendants, this suggests that it is the likelihood of conviction rather than the magnitude of reduction following a guilty plea that was the primary determinant in the decision to plead guilty. However, the data are far from robust on this question and more (and more up to date) research is needed.
While the above described sentencing differential is certainly smaller than many of the incentives present in the U.S. system, I wonder whether this captures all of the incentives that are actually available and being offered in England and Wales. My recent piece examining plea bargaining systems in several countries noted that many countries have extensive shadow bargaining systems with little or no transparency. One must wonder what other incentives may be operating outside of the above described regulated system that might be further increasing the size of the actual sentencing differentials. As the authors note, there is a need for more research to see how the systems in England and Wales are operating, and I hope that any such research would include updated examination of this issue.
The full report is available for review here.