Out in the open

Out in the open

Judges can now tell what sentence they will hand out in return for a guilty plea. Matthew Scott hails an end to secret deals

The question that most of my clients ask me is: “Will I go to prison if I plead guilty?” to which the honest but unhelpful answer is often: “I haven’t got the faintest idea. It all depends on the judge.”Last week, in a case called Good-year, the court of appeal ruled that I am now allowed to ask the judge the same question and, more importantly, the judge is allowed to tell me the answer.For many years, for reasons long since forgotten, this practice, known cryptically as “giving an indication”, has been both strictly forbidden and extremely popular. It was popular with defendants who liked to know where they stood, and popular with barristers, many of whom, contrary to what one might expect, have a distinct dislike for actually contesting a case if there is some way of avoiding it. Most of all it was popular with judges who are at least as much in favour of a quiet life as most criminals and usually in a better position to achieve it.

What used to happen was that the judge would call counsel into his room at 10 o’clock, ostensibly for a cup of stewed coffee and two petit beurres. There would of course be “no need for the shorthand writer”.

Turning to defence counsel, he would say: “I’m afraid the evidence is overwhelming and your client is bound to be convicted, but if he pleads guilty I won’t send him to prison.”

Leaving the second biscuit uneaten, defence counsel would immediately convey this message back to his client. Given the stark choice of going 50:50 on spending 2,000 hours locked up in a cell with a chain-smoking murderer, or the certainty of spending 200 hours weeding old ladies’ gardens, most defendants opted for the gardening.

Occasionally a brave or reckless defendant might continue to protest his innocence. At 10.30 there would be another summons from the judge. This time there would be no coffee and the biscuits would have been cleared away. The judge would now claim to have “had a closer look at the papers” (meaning he had now read the letters pages as well as the sport). “Of course,” he would say, looking over his half-moons at prosecution counsel, “your forensic evidence is completely inadmissible. If you persist in this hopelessly misconceived prosecution I shall have seriously to consider an application for costs against the Crown Prosecution Service.”

The prospect of another “CPS bungles again” headline usually did the trick, and as a result many trials were “cracked” – in other words avoided altogether by a last-minute dropping of some or all of the charges, or by a plea of guilty on some mutually agreed basis – to the satisfaction of all concerned, especially the judge. If executed successfully a cracked trial can achieve the happy result of seeing everyone concerned leave court feeling that justice has been done, a most improbable outcome after a contested trial.

The court of appeal kept trying to stamp the practice out. It raged against the manifold evils that it caused: undue pressure on the innocent defendant, justice behind closed doors, blindness, acne and black bags under the eyes. It insisted that judges’ rooms be equipped with ever more sophisticated recording machines to monitor any hint of an indication being given. Judges were exhorted to behave inscrutably at all times. Those with loose tongues or insufficiently poker faces were named and shamed.

None of it worked. The urge to indicate proved irrepressible. Judicial hints were passed through friendly court clerks. Nods and winks were exchanged and in crown courts all over the country the cat’s-whisker sensitivity of government listening devices was evaded by a system of verbal conventions as opaque to the outsider as those of the tournament bridge circuit. Indications were given but only in a deniable form. If a judge said “a guilty plea would show considerable remorse”, that suggested community service. But “I suppose I could still give some credit for a guilty plea” meant that it was time to pack the toothbrush and Scrabble set. Unlike the previous regime of plain-speaking judicial promises, these delphic obiter dicta required translation. Sometimes meaning was lost in translation. Misunderstandings occurred and unnecessary trials took place, doubtless resulting in many miscarriages of justice. Instead of becoming more open as the court of appeal had intended, the justice system became still more mysterious to the uninitiated.

The court of appeal’s change of heart is therefore to be welcomed both by conservatives who want the justice system to become more old-fashioned, and by liberals who like open justice. And when my clients ask me what they are going to get I can now say to them: “Tell you what, I’ll ask the judge.”

· Matthew Scott is a barrister at 3 Pump Court.

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