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In a study based on interviews with women in Holloway prison it was found
that a signi¬cant number pleaded guilty to o¬ences they claimed not to have
committed. Of 527 women who had been tried at magistrates™ courts, there were
¬fty-six such cases. The reasons they gave were similar to those mentioned by
Davies “ police advice or pressure, to save time and avoid remands, fear that
pleading not guilty would lead to harsher penalties or the feeling that there was
no point when the police evidence would inevitably be preferred.609
In a later study by Baldwin and McConville of last-minute change of plea cases
tried at the Birmingham Crown Court, ˜over half of the sample made some claim
to be innocent, and often very vehemently, either of the whole of the indictment
to which they pleaded guilty or of individual counts within it™.610 No fewer than
seventy of the 121 defendants interviewed (58 per cent) claimed to be innocent.
Some of these claims according to the researchers were somewhat limp, others
were scarcely believable and seemed far-fetched to the interviewer. Others were
based on a misunderstanding of the law, but there were some whose stories could
not be so lightly dismissed. The reasons given for pleading guilty were variations
on a few themes: ˜the feeling of hopelessness at attempting to rebut the evidence
of police o¬cers and the severity of sentence they anticipated if they failed to do
so; the weariness caused by the case dragging on for months on end and the con-
sequent anxiety and social disruption caused by frequent remands (especially if
in custody); the attractiveness of the bargain held out to them or perhaps merely
the negative pressure exerted by counsel™ (p. 65).


608
C. Davies, ˜The Innocent who Plead Guilty™, Law Guardian, March 1970, pp. 9 and 11.
609
S. Dell, Silent in Court, Occasional Papers in Social Administration No. 42 (Bell, 1971) p. 30.
610
Negotiated Justice (Martin Robertson, 1977) p. 61.
324 Pre-trial criminal proceedings


The role of the lawyers
A factor in the decision to plead guilty in some cases in Baldwin and
McConville™s sample was the advice of counsel. Some defendants said that
their barristers had made it clear that they had no real prospect of an acquit-
tal (p. 70). The independent assessors who examined the cases concluded that
in 79 per cent of these cases the likelihood was that the defendant would be
convicted, but in 21 per cent they thought there was some chance of an
acquittal and in some instances that the chances of an acquittal were good
(p. 74).611
One of the main contentions of this Baldwin and McConville study was that
some guilty pleas are induced by improper pressure by the barrister. This sug-
gestion produced a furious denial from the Bar, but a later piece of analysis of
the same data by the same two authors revealed the signi¬cant fact that the pro-
portion of guilty pleas varied dramatically from one barrister to another.612
Some apparently like a ¬ght more than others and some may be more inclined
to exert pressure on the client to plead guilty. No doubt the barrister honestly
believes this to be in the best interests of his client but, because of his psy-
chological ˜set™, he may take insu¬cient notice of the client™s protestations of
innocence.
The converse situation is where counsel may have to consider whether to
withdraw from a case rather than to continue to represent a client who is plead-
ing guilty. For an exploration of that situation see L. Bridges, ˜The Ethics of
Representation on Guilty Pleas™, 9 Legal Ethics, 2006, pp. 80“100.
Guilty plea rates vary as between di¬erent circuits. Solicitor Ole Hansen
reported on an informal inquiry into the reasons behind these variations. The
circuit administrator in Leeds said that the abnormally high guilty plea rate in
his (North Eastern) circuit re¬‚ected the robustness of the bench and the legal
profession ˜and a good dollop of northern common sense™,613 but, Hansen sug-
gested, what seemed like robustness to a circuit administrator might look
rather di¬erent from the defendant™s perspective. A Leeds solicitor told him
that ˜the local bar was not prepared to ¬ght enough cases™. One of the reasons
that he used London counsel a lot was that they were more ready to ¬ght “ and
they usually won their cases. (The London not guilty plea rate is consistently
the highest in the country. The North Eastern circuit consistently has the

611
The Crown Court Study conducted for the Runciman Royal Commission on Criminal Justice
appeared at ¬rst to be a fourth study with evidence of innocent persons pleading guilty. In a
pre-publication lecture about the early results of the study, the writer suggested that the study
included ¬fty-three such cases. (M. Zander, ˜The Royal Commission™s Crown Court Study™,
142 New Law Journal, 11 December 1992.) Further analysis of the cases showed, however, that
very few, if any, were examples of this phenomenon. (M. Zander, ˜The “Innocent” who Plead
Guilty™, 143 New Law Journal, 22 January 1993, p. 85 and the Royal Commission™s Report,
p. 11, para. 43.)
612
127 New Law Journal, 27 October 1977, p. 1040. See also M. McConville et al, Standing
613
Accused, 1994, pp. 257“60. 136 New Law Journal, 27 June 1986, p. 601.
325 The guilty plea


highest guilty plea rate in the country.) Moreover the problem was not
con¬ned to the Bar. ˜Many solicitors had a similar attitude. They did not believe
their client™s defences were valid and therefore did not investigate cases fully “
preferring instead to maximise their fee income from magistrates™ court advo-
cacy. The end result was a client under pressure to plead guilty in the Crown
Court™.614
Another explanation for the high guilty plea rate, Hansen suggested, was that
the judge, the defending and the prosecuting barristers all frequently came from
the same chambers, which made defence counsel ˜anxious not to appear to
“waste” the courts™ time™.


Other factors in guilty pleas
Also, Hansen suggested, in the provinces, if a barrister had a number of guilty
plea cases in a session he could get a higher level of remuneration than if he only
had the one not guilty plea case. A study published in 2006 showed that the
introduction of ¬xed fees had statistically a¬ected the rate of guilty pleas.
Lawyers interviewed for the study denied that they themselves had allowed eco-
nomic considerations to a¬ect their pleading practices but they thought that
other lawyers had been a¬ected.615
Some guilty pleas result from skilful handling of the suspect by the police.616
Sometimes a guilty plea occurs despite the fact that the prosecution do not
have enough evidence to prove the case.617 In the Crown Court Study prosecu-
tion barristers in guilty plea cases were asked: ˜if the defendant had pleaded not
guilty but the prosecution had gone forward, do you think he/she would have
stood a fair chance of an acquittal?™ In 9 per cent the response was ˜yes, the
defendant would have had a fair chance of an acquittal™.618
The case for barristers to advise the client to plead not guilty was strongly
argued by P. Tague in his article ˜Tactical Reasons for Recommending
Trials Rather than Guilty Pleas in Crown Court™.619 A trial was not as risky

614
For con¬rmation see the disturbing account of the attitude of defence solicitors toward their
clients in M. McConville et al, Standing Accused “ p. 362 below.
615
C. Tata and F. Stephen, ˜“Swings and Roundabouts”: Do Changes to the Structure of Legal Aid
Remuneration Make a Real Di¬erence to Criminal Case Management and Case Outcomes?™,
Criminal Law Review, 2006, pp. 722“41 at 735. See equally the uncomfortable research results
in P.W. Tague, ˜Barristers™ Sel¬sh Incentives in Counselling Defendants over the Choice of
Plea™, Criminal Law Review, 2007, pp. 3“23.
616
See B. Smythe, ˜Police Investigation and the Rules of Evidence™, 117 Solicitors™ Journal,
5 October 1973, p. 718 written by a former police o¬cer. See further M. McConville,
A. Sanders and R. Leng, The Case for the Prosecution (Routledge, 1991) pp. 60“5.
617
See J. Baldwin and M. McConville, Negotiated Justice (Martin Robertson, 1977) p. 74; S.
Moody and J. Tombs, Prosecution in the Public Interest (Scottish Academic Press, 1982) p. 307;
M. McConville, A. Sanders and R. Leng, The Case for the Prosecution (Routledge, 1991) p. 159.
618
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
Research Study No. 19, 1993) section 6.5.5.
619
Criminal Law Review, 2006, pp. 23“37. Peter Tague, Professor of Law at Georgetown
Unversity, has written over many years about criminal justice issues in the US and the UK.
326 Pre-trial criminal proceedings


nor a guilty plea as advantageous, as was often believed. The main advantages
he suggests are the statistical likelihood of an acquittal, the fact that the sen-
tence after a guilty plea may not in fact be signi¬cantly less and that after a not
guilty plea there is the possibility of a successful appeal. (The article should be
compulsory reading for barristers and solicitors who defend in criminal
cases.)


The sentence discount
A very powerful incentive to plead guilty is the fact that a person who pleads
guilty is entitled to expect a signi¬cantly lower sentence than if he is convicted
after pleading not guilty. It is not known when this was ¬rst established but it
has been part of the English system for decades. Originally the sentence dis-
count for a guilty plea was recognised in statements made by the Court of
Appeal,620 but, as will be seen, it is now proclaimed both in legislation and in
o¬cial guidelines issued to the courts.
In the early judicial statements the discount was said to be a response to the
defendant™s remorse. This was a ¬ction since there was no inquiry as to whether
the defendant was in fact remorseful. (The discount for a guilty plea is now
treated as separate from the question whether the defendant deserves extra
credit for remorse or other mitigating factors (see p. 332 below).) In reality the
discount is, and always was, given in recognition of the fact that a guilty plea
saves the expense and the trouble of a trial as well as saving witnesses the ordeal
of testifying.621 The bene¬t to the prosecution is that there is a conviction. The
bene¬t for the defendant is the lower sentence. Whether the victim of the crime
believes that the sentence discount gives him or her a bene¬t must be regarded
as doubtful.
The idea of the sentence discount has very widespread support.622 However,
the support is not universal. Professor Andrew Ashworth in particular argues
that the sentence discount is against the spirit of four fundamental rights and

620
In Turner [1970] 2 QB 321, Lord Chief Justice Parker said that counsel for the defence was
entitled to advise his client (˜if need be in strong terms™) that a guilty plea ˜showing an element
of remorse is a mitigating factor which may well enable the court to give a lesser sentence than
would otherwise be the case™. In Cain [1976] Crim LR 464 the Court of Appeal stressed that
defendants should appreciate that, in general, a plea of guilty attracts a lesser sentence and
that this was ˜a glimpse of the obvious™. Lord Widgery said: ˜Everybody knows that it is so and
there is no doubt about it. Any accused person who does not know about it should know
about it. The sooner he knows the better™.
621
The Guideline on Reduction in Sentence for Guilty Plea, issued by the Sentencing Guidelines
Council in December 2004 “ see p. 000 below “ states: ˜A reduction in sentence is appropriate
because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of
more expeditiously), shortens the gap between charge and sentence, saves considerable cost,
and in the case of an early plea, saves victims and witnesses from the concern about having to
give evidence™ (para. 2.1).
622
The writer, for instance, does not recall any submission amongst the hundreds made to the
Runciman Royal Commission on Criminal Justice that was critical of the sentence discount.
327 The guilty plea


freedoms recognised by the ECHR “ the presumption of innocence, the privi-
lege against self-incrimination, the right to be treated fairly and without dis-
crimination, and the right to a fair and public hearing.623
Although almost all the literature and case law on the sentence discount
relates to the Crown Court, the concept also applies in the magistrates™ court.624
The ¬rst mention of it in the Magistrates™ Association™s Sentencing Guidelines
appeared in 1989. A study published in 1990 found that magistrates did not
regard a guilty plea as a signi¬cant matter in mitigation of sentence,625 but the
1993 o¬cial Guidelines stated unequivocally: ˜the guideline sentences repre-
sent a broad consensus of view and are based on a ¬rst-time o¬ender pleading
not guilty. A timely guilty plea may be regarded as a mitigating factor for which
a sentence discount of approximately one-third might be given™.626


The judge™s involvement in plea discussions
The courts have tried over the years to arrive at an acceptable approach to the
problem of communication regarding the plea between the defendant and his
lawyers, on the one hand, and the prosecution lawyers and the judge, on the
other. It is common for there to be discussion between prosecution and defence
to see whether there is a basis for the defendant to plead guilty. These discus-
sions are generally referred to as plea (or charge) bargaining.
Plea bargaining in the United States is di¬erent as the prosecutor there is
permitted to suggest an actual sentence to the court. This, so far at least, is not
permitted in England. It follows that the prosecution cannot do a ˜deal™ by
promising to ask for a particular sentence in return for a guilty plea. (See p. 335
below, however, for the recommendation of the Fraud Review.)
Normally the judge accepts what emerges from the discussions between the
two sides, but it is open to the judge to reject any ˜deal™ struck between the
lawyers. In the ˜Yorkshire Ripper™ case in 1981 the prosecution and defence
agreed that Peter Sutcli¬e would plead guilty to manslaughter on the grounds
of diminished responsibility. The judge refused to accept the plea. There was a
long trial, at the end of which the jury found the accused guilty of murder and
rejected the diminished responsibility defence.

623
See for instance A. Ashworth and M. Redmayne, The Criminal Process (3rd edn, OUP, 2005)
pp. 285“96. See also M. McConville, ˜Plea Bargaining: Ethics and Politics™, 25 Journal of Law
and Society, 1998, pp. 562“87 and P. Darbyshire, ˜The Mischief of Plea Bargaining and
Sentencing Rewards™, Criminal Law Review, 2000, pp. 895“910. (As well as arguing the case,
Darbyshire cites the recent literature). For the ethical dilemmas of the defence lawyer see M.
Blake and A. Ashworth, ˜Ethics and Criminal Defence Lawyer™, 7 Legal Ethics, 2004,
pp. 168“89.
624
For an empirical study of the operation of the sentence discount in magistrates™ courts see R.
Henham, ˜Reconciling Process and Policy: Sentence Discounts in the Magistrates™ Courts™,
Criminal Law Review, 2000, pp. 436“51. The study con¬rmed that the discount was in regular
(if erratic) use.
625
R.J. Henham, Sentencing Principles and Magistrates™ Sentencing Behaviour (Avebury, 1990).
626
Emphasis in the original.
328 Pre-trial criminal proceedings


Sometimes the judge becomes directly involved in the discussions. This has
dangers. The locus classicus of advice to counsel on the practice of discussing
these issues with the judge was the Court of Appeal™s 1970 judgment in R v.
Turner.627 The defendant there changed his plea to guilty after advice from his
counsel following a conversation between counsel and the judge. Counsel
advised that in his opinion a non-custodial sentence would be imposed if the
defendant changed his plea, whereas if he persisted with the plea of not guilty,
there was a real possibility of a sentence of imprisonment being passed.
Repeated statements were made to him that the ultimate choice of plea was his.
Although he did not receive a custodial sentence he nevertheless appealed
against his own plea.
The Court of Appeal reluctantly allowed the appeal and quashed the convic-
tion not on the ground that counsel had done anything wrong but because the
defendant might have gained the impression that counsel™s advice was based on
what the judge had said. The court took the opportunity of making some
general observations:
Counsel can advise his client, if need be in strong terms, that a plea of guilty,
showing an element of remorse, is a mitigating factor which may well enable the
court to give a lesser sentence than would otherwise be the case. Counsel should
always emphasise that the client should not plead guilty unless he has commit-
ted the act charged.
Any discussion between counsel and the judge must be in the presence of
counsel for both prosecution and defence.
Counsel may wish to discuss with the judge whether it would be proper for
the prosecution to accept a plea to a lesser o¬ence.
Subject to one exception, the judge should never indicate the sentence which
he is minded to impose. A statement that on a plea of guilty he would impose
one sentence but that on a conviction following a plea of not guilty he would
impose a severer sentence is one which should never be made. This could be
taken to be undue pressure on the accused, thus depriving him of that complete
freedom of choice which is essential.
What on occasion does appear to happen however is that a judge will tell
counsel that, having read the depositions and the antecedents, he can safely say
that on a plea of guilty he will, for instance, make a probation order, something
which may be helpful to counsel in advising the accused. The judge in such a
case is no doubt careful not to mention what he would do if the accused were
convicted following a plea of not guilty. Even so, the accused may well get the
impression that the judge is intimating that in that event a severer sentence,
maybe a custodial sentence, would result, so that again he may feel under pres-
sure. This accordingly must also not be done.
The only exception to the rule is that it is permissible for a judge to say
that whether the accused pleads guilty or not guilty, the sentence will or will
not take a particular form, e.g. a probation order or a ¬ne, or a custodial
sentence.

627
[1970] 2 QB 321, CA.
329 The guilty plea


There were many further decisions regarding the issue.628 The chief principle
that could be distilled from these cases was that the judge should not engage in
over-precise indications, let alone bargaining, as to what he intended with
regard to sentence.
The fundamental problem with this case law was that the Court of Appeal
wanted to have it both ways. On the one hand, it wanted defendants to appre-
ciate that if they pleaded guilty they would get a lesser sentence. On the other
hand, it did not want judges to provide defendants with concrete information
as to how great the discount would be.
The courts gave two reasons for refusing to provide a defendant with this
information. One was that it would create undue pressure to plead guilty. This
is unconvincing. The pressure is created by the mere fact of the sentence discount
itself. Quantifying the discount can hardly increase the pressure. Indeed, it
might reduce the pressure by making it clear that the defendant™s fears about the
penalty for pleading not guilty are exaggerated. The second reason given was that
it was unseemly for the court to be in any sense bargaining or haggling with the
defendant. As was said in Cain: ˜what was being condemned was a more precise
o¬er because the judge was then inviting the defendant to bargain with him™.


Making the discount explicit
Is it better for the judge to give a general indication of the kind of sentence he
has in mind which is conveyed to the accused without too detailed an account
or should the accused be told more precisely what his options are?
Both practitioners and judges overwhelmingly favour explicit indications. In
the Crown Court Study the judges and barristers in the sample cases were asked:
˜Do you think that Turner should be reformed to permit full and realistic dis-
cussion between counsel and the judge about plea and especially sentence?™ 86
per cent of prosecution barristers, 88 per cent of defence barristers and 67 per
cent of judges answered this question ˜yes™.629
As will be seen, this view has now prevailed. Turner has been set aside.
The origin of this major shift of approach was a submission in 1992 to the
Runciman Royal Commision from a committee of the Bar Council chaired by
Robert Seabrook QC recommending that uno¬cial plea bargaining should be
replaced with a formal system with graduated sentence discounts depending on
the stage at which the guilty plea was entered. (A guilty plea at the committal
stage should receive a minimum of 30 per cent discount, while those who waited
longer would get less “ a minimum of 10 per cent was suggested for a plea made
between the ¬rst Crown Court listing and arraignment.)

628
See for instance Cain [1976] Crim LR 464; Llewellyn (1978) 67 Cr App Rep 149; Bird [1978]
Crim LR 237; Atkinson [1978] Crim LR 238; Davis [1979] Crim LR 167; Smith [1990] Crim
LR 354; Pitman [1991] 1 All ER 468.
629
M. Zander and P. Henderson, Crown Court Study (Royal Commission on Criminal Justice,
Research Study No. 19, 1993) section 4.13.1.
330 Pre-trial criminal proceedings


The Runciman Royal Commission adopted the recommendation of the
Seabrook Committee. Its report said of the sentence discount: ˜provided that
the defendant is in fact guilty and has received competent legal advice about his
or her position, there can be no serious objection to a system of inducements
designed to encourage him or her so to plead™.630 It thought that the system of
sentence discounts should remain but that it should be made more e¬ective, in
particular by promotion of earlier guilty pleas so as to reduce the very high pro-
portion of last minute guilty pleas (known as ˜cracked trials™).
The Commission recommended a system of formalised plea bargaining
which it called ˜sentence canvass™. It could only be initiated by the defence asking
the judge at a hearing in chambers what sentence he would impose on a guilty
plea. Prosecution and defence would present the case to the judge who, if he felt
able and willing, would give an indication as to sentence. If the defendant
accepted that sentence, the case would be adjourned into open court and the
parties would go through it all again in public. If the defendant did not accept
it, he would be free to contest the case in the normal way. The sentencer at a trial
would not be bound by the indication given at the sentence canvass.631
The proposal was not well received. In particular, the highly in¬‚uential ¬gure
of the Lord Chief Justice, Lord Taylor, made it clear that he strongly opposed it.
At the time it seemed unlikely that any version of this recommendation would
be implemented.
The Commission also recommended that the earlier the plea, the greater the
discount. This was implemented in the Criminal Justice and Public Order Act
1994. This was the ¬rst statutory recognition of the sentence discount. Section
48(1) provided that when determining what sentence to pass on an o¬ender
who has pleaded guilty the court shall take into account (1) the stage in the
proceedings for the o¬ence at which the o¬ender indicated his intention to
plead guilty; and (2) the circumstances in which this indication was given.
Section 48(2) stated that if the court had used subsection (1) it should state
the fact.632
In 2000, the Fraud Advisory Panel made proposals to the Lord Chancellor
which included a sentence canvass for fraud cases very similar to that proposed

630 631
Runciman, p. 110, para. 42. Ibid., pp. 113“14, paras. 50“5.
632
A study of the impact of s. 48 based on 310 guilty plea cases in six Crown Court centres
showed that it was working very imperfectly. In almost half the cases in the sample the judge
did not comply with the requirement of saying that he had given a discount for the guilty
plea. Of those who did say it, only a third went on to give any explanation of the basis on
which they had reached their decision. Under 10 per cent of the whole sample gave a full
explanation. Surprisingly, a third of the sentencers told the researchers they regarded a guilty
plea ˜not particularly important™ or ˜not important at all™ and half said they attached no
importance (35 per cent) or no particular importance (15 per cent) to the stage when the
guilty plea was entered. There were considerable di¬erences in the way the section was treated
in di¬erent courts as well as di¬erences in the discounts given for o¬ences. (R. Henham,
˜Bargain Justice or Justice Denied? Sentence Discounts and the Criminal Process™, 62 Modern
Law Review, 1999, pp. 515“38. The article also covers the case law and recent literature on the
subject.)
331 The guilty plea


by the Runciman Commission.633 In 2001, Lord Justice Auld in his report on the
criminal justice system made a similar proposal, save that he would go further
still in allowing the judge to state not only the maximum sentence he would give
on a guilty plea, but also the sentence he would give if the defendant was con-
victed after a not guilty plea.634
In July 2002, the Government™s White Paper Justice for All635stated that the
Government accepted the basic idea of the sentence canvass. (˜We therefore
intend to introduce a clearer tari¬ of sentence discount, backed up by arrange-
ments whereby defendants could seek advance indication of the sentence they
would get if they pleaded guilty™ (para. 4.42).) The procedure would have to be
initiated formally by the defendant in court sitting in private in the presence of
the prosecution. The proceedings would be recorded, but, agreeing with
Runciman rather than Auld, the court™s indication of sentence would not
include what it might be after a trial (para. 4.43). The system would not apply
to summary-only proceedings but it would apply to either-way cases. The law
would be changed to provide that when making their decision magistrates
would be informed about the defendant™s prior convictions. A trial conducted
by magistrates after an advance indication would be handled by a di¬erent
bench (para. 4.44).
The Criminal Justice Act 2003, Sch. 3 dealt with this issue as it a¬ected mag-
istrates™ courts. It included a provision that the magistrates should be
informed of the defendant™s prior convictions when deciding whether an
either-way case is suitable for summary trial.636 If they reach that view, the
defendant ˜may then request an indication (“an indication of sentence”) of
whether a custodial sentence or non-custodial sentence would be more likely
to be imposed if he were to be tried summarily for the o¬ence and to plead
guilty™.637 So the indication of sentence would only go to the question of
custody or not. The court may, but it need not, give such an indication.638 If
the defendant opts for trial in the Crown Court, the judge there would not
have his hands tied by the indication of sentence given by the magistrates.639
It was expected that this provision allowing the defendant to ask for an indi-
cation of sentence would be implemented in November 2006. However,
during the summer the Government indicated that implementation would be
delayed. There was no information as to whether this would be a short or long
delay.
There was nothing in the Act regarding a ˜clearer tari¬ of sentence discount™
but that came forward in guidance published by the Sentencing Guidelines

633 634
150 New Law Journal, 17 March 2000, pp. 398 and 399. Auld, p. 443.
635 636
Cm. 5563. New MCA 1980, s. 19(2)(a) inserted by Sch. 3, para. 5 of the 2003 Act.
637
New MCA 1980, s. 20(3) inserted by Sch. 3, para. 6 of the 2003 Act. For consideration of the
˜indication of sentence™ see the Sentencing Advisory Panel™s advice to the Sentencing
Guidelines Council, February 2006, paras. 33“47 and recommendation 18.
638
New MCA 1980, s. 20(4) inserted by Sch. 3, para. 6 of the 2003 Act.
639
New MCA 1980, s. 20A(3) inserted by Sch. 3, para. 6 of the 2003 Act.
332 Pre-trial criminal proceedings


Council640 in December 2004 on the ˜Reduction in Sentence for a Guilty Plea™.641
It introduced a sliding scale for the discount of one-third reducing to 10 per cent.642
A full discount of one-third was only to be given where the guilty plea was
entered at the ¬rst reasonable opportunity. A defendant who delayed his plea
until he was committed for trial might only get a discount of 30 per cent because
he could have given the indication at plea before venue in the magistrates™ court.
The discount was to be reduced to a maximum of one-quarter where a trial date
had been set and to a maximum of one-tenth for a guilty plea entered at the
door of the court or after the trial had started.
Whether the courts will pay much attention to this sliding scale is questionable.
Research643 suggests they may not. Quite apart from anything else, a judge has a
good deal of leeway in arriving at what he thinks is the appropriate sentence by
pitching the starting point higher or lower before applying the Guideline discount.
The Guidelines (para 2.3) state that the issue of remorse “ or any other mit-
igating factor, such as admissions to the police in interview “ should be treated
as a separate matter before calculating the reduction for the guilty plea.
A special section of the Guidelines deals with its application to sentences for
murder. Where a full life tari¬ is imposed, there is no room for any discount. In
other cases, the discount is half 644 of that applied to other o¬ences with a
maximum discount of ¬ve years.
Section 172 of the Criminal Justice Act 2003 states that in sentencing an
o¬ender the court ˜must ¦ have regard to any guidelines which are relevant to
the o¬ender™s case™.
In May 2006 the Sentencing Advisory Panel, at the request of the Sentencing
Guidelines Council, issued a consultation paper inviting views as to whether the
existing Guidelines on the sentence discount should be revised.645 The consulta-
tion exercise was the result of public uproar over the case of Alan Webster, a pae-
dophile convicted of the horrifying rape of a three-year old girl. In calculating
the minimum time that he would serve, the judge said that although the evidence
against him was overwhelming, he was entitled to the full one-third discount for
an early guilty plea. The Attorney General appealed unsuccessfully. The Court of
Appeal held that in light of the existing Guidelines the judge had been correct.646
In light of the consultation and the Advice received from the Advisory Panel,
the Sentencing Guidelines Council issued new draft Guidelines in January 2007.

640
The Council, chaired by the Lord Chief Justice, was established by the Criminal Justice Act
2003, s. 167. The Council is advised by the Sentencing Advisory Panel.
641
See www.sentencing-guidelines.gov.uk.
642
Until recently there was no equivalent in Scotland but that has changed “ Du Plooy [2003]
SCCR 640; McGowan, O™Donnell [2005] SCCR 497 and Rennie v. Frame [2005] SCCR 608.
643
See n. 658, p 337 below.
644
This is because in murder cases the judge sets the minimum term and the question of parole
does not arise until that term has been served, whereas with determinate sentences the
o¬ender can be released on licence half way through his sentence.
645
For discussion see Firth, n. 647 below.
646
A-G™s Reference (No 14 and 15 of 2006) French and Webster [2006] EWCA Crim 1335.
333 The guilty plea


The questions posed in the consultation and the answers given by the Sentencing
Council were:
• Does a maximum reduction of one-third properly balance the interests of
justice and the encouragement of guilty pleas? [Yes]
• Should there be an upper limit on the amount of the reduction? [Yes]
• Is a 10 per cent discount for pleas at the door of the court su¬cient in all cases?
[Yes]
• Does the phrase ˜¬rst reasonable opportunity™ for entering a guilty plea
require clari¬cation? In particular does it mean at the police interview or
when the case ¬rst comes before a court? [It will depend on the facts of the
case]
• To what extent, if any, should the fact that the prosecution case is over-
whelming in¬‚uence the level of reduction?
In regard to the last question, the Sentencing Guidelines Council had originally
considered adopting the approach taken in previous cases by the Court of
Appeal647 “ namely, that the maximum discount should not be given where the
evidence was overwhelming so that the defendant had no real alternative but to
plead guilty.648 But it changed its mind.649 The issued Guideline (para. 5.2),
under the heading ˜Where an o¬ender is caught red-handed™, said there was no
reason why credit should be withheld or reduced on these grounds alone.650
However the draft Guideline issued in January 2007 in light of the consulta-
tion exercise said:˜Whilst there is a presumption in favour of the full reduction
being given where a plea has been indicated at the ¬rst reasonable opportunity,
the fact that the prosecution case is overwhelming without relying on admis-
sions from the defendant may be a reason justifying departure from the guide-
line™ “ reducing the discount to 20 per cent. (paras 5.3, 5.4)).

R v. Goodyear
As noted, the 2003 Act con¬ned advance sentence indication to magistrates™
courts. The Government took the view that the new system could be applied in
the Crown Court without legislation. That duly happened in April 2005 when
the Court of Appeal gave judgment in Goodyear651 which e¬ectively overruled
its 1970 decision in Turner. To mark its importance there were ¬ve instead of
the usual three judges. The decision was given by the Lord Chief Justice.
The court said: ˜In essence we accept the recommendation of the report of
the [Runciman] Royal Commission™ (at [54]). It ruled that it would now be
647
See for instance Greenland [2002] EWCA Crim 1748.
648
The draft Guideline had said that the credit was ˜likely to be less for someone caught red-
handed™.
649
Probably in light of the view expressed by the House of Commons Home A¬airs Committee
that a variable discount ˜might be a disincentive to pleading guilty™ “ see P. Firth, ˜Special O¬er
“ One Third O¬™, 156 New Law Journal, 11 August 2006, p. 1279.
650
Applied in Oosthuizen [2005] EWCA Crim 1978.
651
[2005] EWCA Crim 888, [2005] 3 All ER 117, [2005] Crim LR 659.
334 Pre-trial criminal proceedings


permissible for the defendant to give his counsel instructions (which should be
in writing) to ask the judge for a prior indication of the maximum sentence he
would give on a guilty plea. Provided the question was initiated by the defendant,
knowledge of the sentence would not amount to improper pressure. It simply
substituted the defendant™s reliance on his counsel™s assessment of the likely sen-
tence with the more accurate indication provided by the judge himself. It was to
be distinguished from an unsolicited indication directed at him by the judge and
conveyed to him by his counsel. The judge should not give an advance indica-
tion of sentence unless asked to do so by the defendant “ though the judge was
not prohibited from reminding counsel in open court in the presence of the
defendant of his right to seek an advance indication of sentence. In giving such
an indication, he should not go further and indicate what the sentence might be
after a trial as the comparison would create the risk of improper pressure to plead
guilty. Nor should the judge get involved in a plea bargain by indicating what the
di¬erent sentence would be if the defendant pleaded guilty to di¬erent charges.
(˜Thus for example he should refuse to give an indication based on the possibil-
ity that the defendant might plead guilty to s. 18, alternatively s. 20, alternatively
s. 47™ (at [68]).) Turner remained good law only in permitting the judge to indi-
cate that the sentence would be the same whatever the plea “ though that would
be unusual given the guidance as to the credit to be given for a guilty plea.
The court said that the defence advocate was responsible for ensuring that the
defendant appreciated that he should not plead guilty unless he was guilty. An
indication should not be sought unless prosecution and defence are agreed on an
acceptable plea and on the factual basis to the plea. The agreed basis should be
reduced into writing before an indication is sought. The court said it anticipated
that a sentence indication would be sought at the plea and case management
hearing (as to which see p. 349 below). This was usually the ¬rst opportunity for
the defendant to plead guilty and the moment when the maximum discount for
a guilty plea was available to the defendant, but it could be requested at a later
stage “ even at the trial itself. In complex cases seven days™ notice should be given.
The judge was not obliged to give an indication and he could state that he
could not give one at that stage. Any indication given was binding not only on
that judge but on any other judge who dealt with the case after the guilty plea.
It obviously does not bind the judge after a trial.
The hearing should normally take place in open court with a full recording
made, both sides represented and in the presence of the defendant. Reporting
restrictions should normally be imposed, to be lifted if and when the defendant
pleads or is found guilty.


Use of the sentence discount “ or even total immunity “ for helping the
prosecution
The sentence discount can also be used to persuade defendants to assist the
prosecution by giving statements and, if needed, evidence regarding the guilt of
335 The guilty plea


others. Utilisation of the sentence discount for this purpose was explicitly
recognised in the Serious Organised Crime and Police Act 2005. Section 73
(headed ˜Assistance by defendant: reduction in sentence™) provides that where a
person pleads guilty and has made a written agreement with a prosecutor to give
assistance to the prosecution, the court may take into account the extent and
nature of that assistance when passing sentence. Unless the court considers it
not to be in the public interest to do so, it should state in open court both that
it has passed a lesser sentence than it otherwise would have been and what the
greater sentence would have been.
The Government™s Fraud Review published in July 2006 took this concept
even further. It suggested that the time was ripe for a rethink of the traditional
English opposition to a formal plea bargaining system as it existed in the United
States, i.e. a bargain agreed between prosecution and defence that could be pre-
sented as a recommendation to the court.652
Commenting sceptically, Peter Kiernan, a partner of Eversheds, said that the
average sentence for Serious Fraud O¬ce cases was currently three and a half
years. With that relatively low level of sentence there might not be su¬cient
leeway to persuade a suspect to plead guilty. From the prosecution™s point of
view, plea bargaining would best take place at a relatively early stage so saving
maximum costs, but at that stage the defendant would not necessarily be able
to judge whether the prosecution could prove his guilt. (˜To motivate someone
to admit guilt at an early stage when the evidence is not strong requires a very
powerful incentive™.) Also, once guilt was admitted, con¬scation of assets would
follow under the Proceeds of Crime Act 2002. How would this be dealt with?
(˜Unless prosecutors will compromise on con¬scation, why rush to admit guilt
when in consequence you lose all your assets? Then again, imagine the head-
lines if a major criminal walked away from a case with a substantial portion of
their ill-gotten gains intact as part of a deal™.653)
There are instances where an accused is given total immunity from prosecu-
tion in return for evidence for, or other assistance to, the prosecution. In 1975
the Court of Appeal said that such an o¬er of total immunity might have to be
made in the public interest but that it should be done only by the Director of
Public Prosecutions, never by the police.654 The practice in England then
seemed to have lapsed. It was used extensively for some years more in Northern
Ireland but it ceased there too in the mid-1980s after a number of high pro¬le
cases went spectacularly wrong for the prosecution.655

652
Fraud Review, 2006, pp. 271“2, paras. 11.66 and 11.68.
653
˜Is Plea Bargaining a Realistic Option for UK Justice™, The Lawyer, 18 September 2006.
654
The occasion was the case of Bertie Smalls who was arraigned at the Old Bailey on charges of
major robberies and acquitted when the prosecution o¬ered no evidence. In return for a
promise of immunity from prosecution he had given the authorities information which had
led to the arrest and conviction of twenty-six others in robberies to the value of over £1
million (The Times, 25 March 1975, p. 18).
655
In 1985 the DPP decided not to proceed with a case against Terry Davis, a supergrass who had
implicated forty to ¬fty other people in serious burglaries. Many had been picked up but in
336 Pre-trial criminal proceedings


The concept has unexpectedly been revived, however, by a provision in the
Serious Organised Crime and Police Act 2005 (SOCPA). Section 71(1) of
SOCPA states: ˜if a speci¬ed prosecutor656 thinks that for the purposes of the
investigation or prosecution of any o¬ence it is appropriate to o¬er any person
immunity from prosecution he may give the person a written notice under this
section (an “immunity notice”)™. If such a notice is given, no proceedings can
be brought save in circumstances speci¬ed in the notice. The section applies to
both England and Northern Ireland.657

Note “ TICs
A di¬erent form of ˜confession™ is the admission by someone who either pleads
guilty or is found guilty that he committed other o¬ences. If this happens before
the court case, they are mentioned in court and ˜taken into consideration™ for
the purpose of sentencing. (Hence they are called TICs.) The advantage for the
accused is that they cannot later be brought up against him. The advantage for
the police is that they can ˜clear the books™ “ the success rate of cleared up crime
in that force area improves.
In recent years the police on some forces have taken this one step further by
visiting defendants in prison after they have been sentenced to see whether they
can get them to admit to other o¬ences.
Unsurprisingly, not all such admissions are true. In August 1986, detectives
from Scotland Yard made a series of surprise raids on thirteen police stations in
Kent investigating allegations that police o¬cers had been falsifying crime sta-
tistics with bogus confessions. It was the sort of police operation usually
directed against leading criminals, complete with a 6am brie¬ng at Scotland

Footnote 655 (cont.)
the end they were released without charges being brought. In 1986 the convictions of eighteen
defendants on the evidence of supergrass Christopher Black were quashed by the Northern
Ireland Criminal Appeal Court. Black had been given immunity for a murder charge in
exchange for evidence against thirty-eight people charged with 184 terrorist o¬ences. The case
against twenty defendants accused on the evidence of William Allen collapsed when the trial
judge described his evidence as ˜unworthy of belief ™. The fourteen men convicted on the
evidence of Joseph Bennett all had their convictions quashed on appeal. In October 1986 the
DPP decided not to o¬er any evidence against nineteen defendants accused of terrorist
o¬ences on information given by Northern Ireland™s ¬rst woman supergrass.
See generally A. Jennings, ˜Supergrasses and the Northern Ireland Legal System™, 133 New
Law Journal, 1983, p. 1043; T. Gi¬ord, Supergrasses (Cobden Trust, 1984); E. Grant, ˜The Use
of “Supergrass” Evidence in Northern Ireland 1982“1985™, 135 New Law Journal, 8 November
1985, p. 1125; S.C. Greer, ˜The Rise and Fall of the Northern Ireland Supergrass System™,
Criminal Law Review, 1987, p. 663; D. Bonner, Modern Law Review 1988, p. 23; S. Greer,
˜Supergrasses and the Legal System in Britain and Northern Ireland™, 102 Law Quarterly
Review, 1986, p. 19.
656
A ˜speci¬ed prosecutor™ in England means the DPP, the Director of Revenue and Customs
Prosecutions or the Director of the Serious Fraud O¬ce and in Northern Ireland means the
DPP for Northern Ireland.
657
This new power was referred to favourably by the Government™s Fraud Review (July 2006)
para. 11.70. For sceptical comment over its re-emergence see M. Lane, ˜The Supergrass
System “ a Metamorphosis™, 156 New Law Journal, 2 June 2006, pp. 908“9.
337 The guilty plea


Yard and a simultaneous swoop on target police stations. Teams of o¬cers from
the Serious Crime Branch were investigating allegations made by a serving Kent
o¬cer, PC Ron Walker, that detectives in the area had been ˜cooking the books™.
He had alleged that the fake confessions were boosting the clear up rate in some
areas by as much as 50 per cent. He also claimed that in return for making false
confessions, some criminals were given a licence to commit further crimes on
release from prison!


Taking a plea before mode of trial decision as to venue
As noted above, the Criminal Procedure and Investigations Act 1996 (CPIA),
s. 49 introduced the new procedure of giving the defendant the right to indicate
how he would plead before the mode of trial decision. If the defendant declines
to indicate how he would plead, the bench decides whether the case should be
tried summarily or at the Crown Court in the ordinary way, but if he later
decides to plead guilty, he is only entitled to a lower sentence discount.658
If he indicates that he would plead guilty, the court then proceeds as if it had
been a summary trial “ either to sentence him or to commit him to the Crown
Court for sentence only. The guilty plea is taken into account by magistrates
together with the matters that they would previously have taken into account
(set out in s. 19 of the Magistrates™ Courts Act 1980) in considering whether
their powers of sentencing were su¬cient.
If the case is sent to the Crown Court, the defendant remains free to change
his plea to one of not guilty at the risk of that raising his sentence if he is con-
victed.659
An assessment in 1999 of the e¬ect of s. 49 by Professor Lee Bridges showed
that although the number of cases in which the magistrates sent cases for trial
in the Crown Court had declined, it had not had the desired e¬ect of reducing
the number of cases going to the Crown Court. The reason was that the number
of cases being committed for sentence had risen by far more:
Between 1996/97 and 1998/99, the number of either-way cases ordered by mag-
istrates to the Crown Court for trial decreased by 4,700 while the number of com-
mittals for sentence increased by 15,600, over three times as much. Plea before
venue has therefore not led to a reduction in cases being sent to the Crown Court
but rather to a change in the status of those cases. Whereas before magistrates

658
Ra¬erty [1998] Crim LR 433. However, this proposition has to be treated with some reserve
since research suggests that sentencers pay little or no attention to the decision in Ra¬erty: ˜. . .
defence solicitors in all three sample courts indicated that full credit was almost always given
for a guilty plea at the plea and directions hearings in the Crown Court despite the guidance
given by the Court of Appeal in Ra¬erty that the maximum sentence discount is reserved for
those who indicate a guilty plea at the plea before venue hearing in the magistrates™ court™ (A.
Herbert, ˜Mode of Trial and Magistrates™ Sentencing Powers: Will Increased Powers Inevitably
Lead to a Reduction in the Committal Rate?™, Criminal Law Review, 2003, p. 314 at 319, n. 28).
659
For the problems created by the CPIA 1996, s. 49 see R v. Warley Magistrates™ Court, ex p DPP
[1998] Crim LR 684 and commentary pp. 687“90.
338 Pre-trial criminal proceedings


would have declined jurisdiction and sent either-way defendants to the Crown
Court for trial, where many of them would then have entered guilty pleas, now
such defendants will indicate their guilty pleas in the magistrates™ court and be
sent, as convicted defendants, to the Crown Court for sentence. This change does
bring some administrative savings, but the vastly increased use by magistrates of
their power to commit defendants to the Crown Court for sentence still involves
a considerable waste of resources and any promise that plea before venue held
out for defendants of having their cases retained for sentencing in magistrates™
courts, because of their early guilty pleas, has proved to be illusory.660
Professor Bridges pursued this matter in evidence to the Commons Home
A¬airs Committee considering the Criminal Justice Bill 2003. He suggested that
˜plea before venue™ introduced by CPIA 1996 was doomed in light of the provi-
sions in the 2003 Bill for advance ˜indication of sentence™ (which are not yet in
force). Under the CPIA procedure the defendant was asked to indicate a plea
before magistrates decided whether the case was suited for summary trial.
Under the provisions of the Criminal Justice Bill magistrates would decide on
venue before the defendant was asked to indicate his plea. If they decided that
it was suitable for summary trial, they would then be able to give an ˜indication
of sentence™ to help the defendant make up his mind as to how to plead.
The e¬ect of taking the decision as to venue before knowing the defendant™s
plea, Bridges suggested, could be to increase the number of cases going to the
Crown Court, thereby reversing the e¬ect of ˜plea before venue™. Further, the
result of ˜indication of sentence™ was that much greater information on the cir-
cumstances of o¬ences and defendants would need to be routinely available to
magistrates at an early stage of the proceedings, with likely resulting delays and
costs. The Government, he thought, had failed to think through the implica-
tions of its plans for sentence indications. (This could be one reason for the
postponement of implementation.)
The Home A¬airs Committee made no mention of these concerns in its
report on the Bill.
A further spanner in the works emerged from new research into plea before
venue and the reasons for magistrates™ decisions declining jurisdiction and
sending cases to the Crown Court.661 The research was conducted in three mag-
istrates™ courts in the Midlands and Home Counties during 1999 and 2000.662
Herbert reached the important conclusion that the idea that magistrates are the
chief decision-makers regarding mode of trial is mistaken:
There was . . . considerable evidence in this study to suggest that most mode of
trial decisions were e¬ectively not taken by magistrates, but were the result of

660
L. Bridges, ˜False Starts and Unrealistic Expectations™, Legal Action, October 1999, pp. 6“7.
661
A. Herbert, ˜Mode of Trial and Magistrates™ Sentencing Powers: Will Increased Powers
Inevitably Lead to a Reduction in the Committal Rate?™, Criminal Law Review, 2003, p. 314.
662
The data collection consisted of observation of court cases, analysis of court registers
regarding more than a thousand cases over a three-month period and interviews with thirty-
eight court participants “ lay and stipendiary magistrates, legal advisers and defence solicitors.
339 The guilty plea


prior negotiation between lawyers. Defence solicitors only challenged the rec-
ommendation of the Crown in 11 per cent of cases and in many of these [about
half] adopted various recognised techniques to ensure that the magistrates
realised that a contested application was only being made in order to comply
with their client™s instructions. Lay magistrates reached a decision contrary to
the agreed or unchallenged recommendation of the Crown Prosecution Service
in only one case out of an observation sample of 123 [p. 318].

Herbert said that the plea before venue provisions had had two prime motiva-
tions:
The ¬rst was the crime control objective of encouraging defendants to admit
guilt by providing them with the opportunity, at least theoretically, to obtain the
maximum sentence discount. The second was to facilitate the completion of
more cases by magistrates by giving them the opportunity to consider all o¬ence
and o¬ender information and apply the discount before determining whether
or not their sentencing powers were su¬cient [p. 319].

The responses of defendants and magistrates provided two major explanations
for the limited e¬ect of plea before venue.
With regard to the ¬rst objective, fewer defendants were prepared to plead
guilty at that stage than had been anticipated. Only about half the defendants
(51 per cent) indicated a plea at the plea before venue hearing. One reason was
what was felt to be inadequate pre-trial prosecution disclosure. Another was the
understandable reluctance to plead guilty at the plea before venue in light of the
charges as they stood at that stage:
There was a consensus of opinion among all interviewed court participants, that
the majority of mode of trial decisions, possibly as many as 75 per cent, were
obvious. They were, however, only obvious on the basis of the charge or charges
faced at the mode of trial hearing. As an example, magistrates in the largest
sample court unsurprisingly declined jurisdiction in eleven cases of violent dis-
order. Yet not one of these defendants was ultimately convicted of that o¬ence,
and all those who admitted lesser o¬ences of violence in the Crown Court
received community orders. Increased sentencing powers will not in¬‚uence this
predicament . . . There would appear to be little incentive for solicitors to
address this perceived problem given their apparent belief that cases which ini-
tially present as being serious are better suited to be resolved in the Crown Court
[p. 321].

As regards the second main reason behind plea before venue, Herbert™s research
showed that magistrates were very reluctant to consider taking cases that they felt
might be outside their sentencing powers. This was demonstrated by their atti-
tude to ordering pre-sentence reports. According to the philosophy behind plea
before venue, the appropriate course of action in a case that appears on the facts
to warrant a sentence of nine months was to order a pre-sentence report and post-
pone any decision until all the information was available, but the research sug-
gested that magistrates had not adopted “ and do not agree with “ this approach.
340 Pre-trial criminal proceedings


They appeared to view the decision to order reports as equivalent to a decision to
accept jurisdiction. The result was that they were unwilling, or at least reluctant,
to order reports in cases that might be outside their sentencing powers, prefer-
ring instead to commit the defendant to the Crown Court at the plea before
venue. Only 5 per cent of 315 defendants for whom reports were ordered were
committed for sentence after consideration of the report. The magistrates inter-
preted this statistic with approval as an indication that their colleagues had made
the right decision at plea before venue. The theory behind plea before venue is
that magistrates would make their decision as to venue after considering all the
relevant facts, but almost half (45 per cent) of those committed had received a
sentence that could have been given by the magistrates and four-¬fths of them
had been committed without a pre-sentence report (p. 320).


12. Committal or transfer proceedings
If the charge is one on which there is a choice between the magistrates™ court
and the Crown Court, the defendant must be told of his right to ask for trial at
the higher level. Most then opt for summary trial. If the defendant asks for trial
at the higher level, his preference prevails. If, however, he asks for summary trial
and the prosecutor prefers to have the case tried at the Crown Court, the court
will decide. The court can also override the defendant™s choice of summary trial
if it thinks the case too serious for trial in a magistrates™ court.
Hitherto, if the case was to be tried in the Crown Court, the defendant had
to be committed for trial by the magistrates™ court. Under the Criminal Justice
Act 2003, when implemented, committal proceedings are to be abolished.
Instead, once the decision is made that the case is not to be dealt with by the
magistrates™ court, it is sent to the Crown Court.
The history of committal proceedings was conveniently set out by the Philips
Royal Commission on Criminal Procedure:663

a. Historical background
184. Before the establishment of regular police forces it was the duty of magis-
trates to pursue and arrest o¬enders and it was the magistrates who could be
referred to as ˜detectives and prosecutors™. They had responsibility for the taking
of depositions as long ago as the sixteenth century. These were equivalent to the
statements taken from witnesses by the police today. The examination of the wit-
nesses took place in private and the accused had no right to be present. In the
early part of the nineteenth century the responsibility for enquiring into o¬ences
began to pass to the police. In 1848 changes were made in the procedure. The
Administration of Justice (No. 1) Act of that year set out to consolidate the law
relating to the duties of magistrates in relation to the functions of investigating
and inquiring into o¬ences, with such changes as were deemed necessary. The

663
The Investigation and Prosecution of Criminal O¬ences in England and Wales: The Law and
Procedure, 1981, Cmnd. 8092“1, pp. 67“8.
341 Committal or transfer proceedings


most important change was a provision whereby the accused was entitled, for the
¬rst time, to be present at the examination of the witnesses against him, but the
inquiry was not required to be in open court, that is in public. The nature of the
inquiry by the magistrates was changing before 1848 and continued to do so after
that year. During this transitional period, the position of the police as investiga-
tors and prosecutors was becoming more clearly established. During the same
period, the magistrates™ inquiry became a judicial instead of an investigative
function. Indeed, by 1848, or soon after, the magistrates™ examination (that is
committal proceedings) usually took place in open court. As a result of these
changes there became grafted onto the system a preliminary judicial hearing.

b. Committal proceedings in the modern era
185. This preliminary judicial hearing continues today, with modi¬cations, as
committal proceedings. The link with the magistrates™ former investigative
functions is evidenced by the statutory reference to committal proceedings as an
inquiry into an o¬ence by examining justices, and by the procedure which envis-
ages that the charge will not be formulated until after the ˜examining justices™
have heard the evidence of the prosecution and that it is the magistrates who will
decide upon what charge the accused will be committed for trial . . .

c. Purpose of committal proceedings
187. The purpose of committal proceedings now is to ensure that no person
shall stand trial at the Crown Court unless there is a prima facie case against him.
It is not a purpose of committal proceedings that the defence may hear all the
prosecution witnesses, or any particular witness or witnesses, give their evidence
in chief or that such witnesses shall be made available for cross-examination.
The prosecution are not required to call all their witnesses at committal pro-
ceedings; if they can make out a prima facie case without calling any particular
witness or witnesses, even an important witness, they are entitled to do so and
neither the defence nor the court can require any witness to be called.664 It
follows that committal proceedings are not necessarily a means whereby the
defence may obtain full disclosure of the prosecution case before trial. In most
cases, however, the prosecution do present all their evidence at the committal
proceedings, and if they do not, they should give notice before the trial of any
additional evidence they propose to call.


The introduction of ˜paper committals™ (1967)
Before the Criminal Justice Act 1967, committal proceedings were lengthy a¬airs
in which all the evidence had to be taken laboriously, translated into depositions
and then signed. In the overwhelming proportion of cases the defendant was
committed for trial. The Criminal Justice Act 1967 introduced changes designed
to abbreviate this procedure and thus save the time of the courts, lawyers, police

664
R v. Epping and Harlow Justices, ex p Massaro [1973] QB 433; R v. Grays Justices, ex p Tetley
(1979) 70 Cr App Rep 11. See also R v. Governor of Pentonville Prison, ex p Osman [1989] 3 All
ER 701 and Galbraith [1981] 2 All ER 1060, CA.
342 Pre-trial criminal proceedings


and witnesses. Instead of the witnesses having to come to the magistrates™ courts
to have their statements taken down, the statements were now sent to the
defence. If the defendant was legally represented, he could agree to be commit-
ted for trial on the basis of the prosecution statements. The procedure in that
event lasted only a few minutes. If, however, he wanted all or some of the pros-
ecution witnesses to be called for examination and cross-examination, this was
open to him. (The procedure was to be found in the Magistrates™ Courts Act
1980, s. 6(1) “ paper committals “ and s. 6(2) “ old style full committals.)
In a large Home O¬ce study in 1985 it was found that there was no evidence
that full committals resulted in the weeding out of a higher proportion of weak
cases than paper committals. The rate of acquittals directed by the judge was
considerably higher in the full committal cases.665 Also, full committals resulted
in considerably greater delays.


Reform or abolition?
The Philips Royal Commission on Criminal Procedure thought that committal
proceedings were an inadequate ¬lter against weak cases. It proposed the abo-
lition of full committal proceedings and the institution of a new procedure
(˜application for discharge™) whereby the defence could ask for a hearing before
the magistrates at which to make a submission of no case to answer. The Royal
Commission also proposed the abolition of paper committals on the ground
that sifting of weak cases would be done by the proposed new independent
prosecution service (the CPS) (paras. 8.24“31).
The Roskill Committee on Fraud Trials in its report in January 1986 also rec-
ommended that something drastic should be done about committal proceed-
ings. With regard to full committals, they were time-consuming. Sometimes in
complicated cases they lasted for weeks and occasionally even months. The
defence desire to use the committal stage as a dress-rehearsal for the trial could
be an abuse. Sometimes, for instance, the defence would cross-examine prose-
cution witnesses simply in the hope of turning up something that would assist
the defence.
The Committee recommended a new procedure whereby fraud cases could
be sent for trial direct to the Crown Court by the new prosecution authorities
recommended by the report. They would issue a ˜transfer certi¬cate™ subject to
the right of the accused to apply to a judge for a discharge on the ground that
the prosecution™s evidence failed to disclose a prima facie case (paras. 4.31“40).
This recommendation was implemented in the Criminal Justice Act 1987,
ss. 4“6. A transfer certi¬cate can be issued under s. 4 by the DPP (and therefore
anyone in the CPS), the Director of the Serious Fraud O¬ce or the Home
Secretary. The basis of a transfer certi¬cate is (1) that in the opinion of one of

665
P. Jones et al, ˜The E¬ectiveness of Committal Proceedings as a Filter in the Criminal Justice
System™, Criminal Law Review, 1985, pp. 355 and 360.
343 Committal or transfer proceedings


the above the evidence of the o¬ence would be su¬cient for the person charged
to be committed for trial and (2) that it reveals a case of fraud ˜of such serious-
ness and complexity that it is appropriate that the management of the case
should without delay be taken over by the Crown Court™ (s. 4(1)(b)).
Further erosion of the value of committal proceedings occurred in the
Criminal Justice Act 1991, s. 55(7), which removed the right of the accused per-
sonally to cross-examine a child victim in sex and assault cases at the commit-
tal stage.
The debate as to what to do about committals continued. (For the history
between 1986 and 1992 see the 6th edn of this work, pp. 304“6.)
In 1992 a study of some 3,000 either-way cases in ¬ve Crown Court areas and
interviews with magistrates and justices™ clerks showed that they thought that
full committals rarely achieved any useful purpose.666 Occasionally they were
useful but the resources they absorbed were quite out of proportion to any ben-
e¬ts. Equally there was a strong view that ˜paper committals™ served no judicial
purpose and that there was no point in retaining them in their existing form.


The Runciman Royal Commission
The Runciman Royal Commission, like the Philips Commission and the Roskill
Committee, recommended that committal proceedings be abolished on the
grounds that paper committals were a waste of time and that there were better
ways of achieving the objective of weeding out weak cases than by old style full
committals. It commented on the cumbersome procedure of full committals.
The Commission said that it did think, however, that there ought to be a way
for the defendant to argue that the case against him was so weak that it should
not be allowed to proceed. The defendant ought therefore to have the right to
submit that there was no case to answer. Such a submission should be consid-
ered on the papers, without calling any evidence. The parties should, however,
be permitted to present oral argument. In indictable-only cases, the submission
of no case to answer should be made to the Crown Court; in either-way cases,
it should be made to the magistrates™ court but they should be heard by stipen-
diary magistrates rather than lay justices.667


Apparent abolition “ Criminal Justice and Public Order Act 1994, s. 44
The Government accepted the recommendation. Committal proceedings were
seemingly abolished by s. 44 of the Criminal Justice and Public Order Act 1994.
Cases were to be transferred to the Crown Court under provisions set out in
Sch. 4 of the 1994 Act. But major snags in the drafting of Sch. 4 were discovered


666
C. Hedderman and D. Moxon, Magistrates™ Court or Crown Court? Mode of Trial Decisions and
Sentencing (Home O¬ce Research and Planning Unit, Paper No. 125, 1992).
667
Runciman, pp. 90“1, paras. 25“32.
344 Pre-trial criminal proceedings


by the Law Society which caused successive postponements, ¬rst to July 1995,
then to September 1995, then to a date in 1996 and then to a later date in 1996.
Finally, to the Government™s embarrassment, the di¬culties raised by the Law
Society and others proved insurmountable. On 25 April 1996 the Home O¬ce
wrote to the relevant interested parties that it had decided to move amendments
to the Criminal Procedure and Investigations Bill totally abandoning the whole
idea of transfer proceedings.
Instead, uncontested ˜paper committals™ under s. 6(2) of the Magistrates™
Courts Act 1980 were retained without change. Contested ˜old style committals™
under s. 6(1) were reformed by the removal of the right to call witnesses to give
oral evidence.
Contested committal proceedings therefore proceeded simply on the basis of
witness statements and other documentary material presented by the prosecu-
tion and oral argument by both prosecution and defence as to whether there
was a case for committal.668
NB Schedule 2 of the Act made dramatic changes in the rules for the giving
of evidence at the Crown Court. Any statement which formed part of a com-
mittal bundle was to be read at trial as evidence of its truth unless the defence
asked for the attendance of the witness for cross-examination. Even if the
defence did require the attendance of the witness for cross-examination, the
judge at the Crown Court had the power to overrule the request and to rule that
the evidence should be read.


Abolition of committal proceedings for indictable-only offences
The Labour Government made a further intervention in this area in the Crime
and Disorder Act 1998 in the provision for indictable-only cases to be sent direct
to the Crown Court without any committal proceedings. Section 51 was
headed, ˜No committal proceedings for indictable-only o¬ences™. Subject to the
power to adjourn, the court was required at the ¬rst hearing to send the accused
direct to the Crown Court for trial. The transfer applied also to any related
either-way o¬ences and any connected summary-only o¬ences carrying
imprisonment or disquali¬cation. The defendant could have an early hearing to
ask the Crown Court judge to dismiss the charge on the ground that there was
not su¬cient evidence for a properly directed jury to convict.669 If a charge was
dismissed, no further charges could be brought on the dismissed charge except
by way of a voluntary bill of indictment (see below).The defence can raise issues
of admissibility, unlike the new procedure on committal. The judge can hear
live evidence if it is in the interests of justice to do so (Sch. 3, para. 2(4)).

668
See the Criminal Procedure and Investigations Act, ss. 44, 45 and Sch. 1. For further
explanation see A. Edwards, Criminal Law Review, 1997, pp. 322“5.
669
An experienced defence solicitor suggested that this test could be more demanding than the
test in the magistrates™ courts. See A. Edwards, ˜Improving Criminal Procedure?™, Criminal
Law Review, 1999, p. 33.
345 Committal or transfer proceedings


Transfer proceedings to replace committal
After a successful pilot the new procedure for indictable-only cases was imple-
mented nationally in January 2001.670
The magistrates are supposed to send the case to the Crown Court on the ¬rst
hearing, though they have the power to adjourn. The reasons for an adjourn-
ment might be to enable the prosecution to decide whether it is indeed an
indictable-only case, for the defendant to get a surety for a bail application or
because co-defendants are involved. The ¬rst hearing in the Crown Court has
to take place within eight days of the magistrates™ court hearing in custody cases
and within twenty-eight days in bail cases.671 Most magistrates™ courts make
˜through legal aid orders™ to cover proceedings for the whole case to trial. In the
Crown Court, most ¬rst hearings are presented by a CPS lawyer, not by counsel,
but the defendant is usually represented by counsel. At the ¬rst hearing the
court asks the defendant to indicate his plea and in contested cases would set
the timetable for the case.
An application by the defendant to have the case dismissed can be made not
later than fourteen days after service of the papers by the prosecution.672
The Auld Report recommended that committal proceedings be abolished
and that all either-way cases going to the Crown Court should be ˜sent™ in the
same way as indictable-only cases under s. 51 of the Crime and Disorder Act
1998 (CDA).673
The Government accepted the recommendation which was e¬ected in Sch. 3
of the Criminal Justice Act 2003 by applying the s. 51 procedure to either-way
cases allocated for trial on indictment,674 to cases where the defendant is under
eighteen675 and to cases of serious fraud cases previously dealt with under the
Criminal Justice Act 1987.676
Schedule 3 was due to be activated in November 2006, but in July it was
announced that implementation of most of its provisions would be postponed.
At the time of writing it was only in force for cases involving juvenile defendants
where an inde¬nite or extended sentence for public protection is a possibility.677

670
The pilots found that the average time taken from charge to completion in bail cases was
reduced from 228 days to 194 days and in custody cases from 172 days to 141 days. The
average number of magistrates™ court hearings was reduced from 4.6 hearings per case to 1.4
hearings. That was accompanied by only one additional Crown Court hearing. On a national
basis this represented savings of an estimated £16 million.
671
The time limit runs from receipt of the notice in the Crown Court with the magistrates having
four days to send the notice.
672
Crime and Disorder Act 1998 (Dismissal of Charges Sent) Rules 1998. See generally S.
O™Doherty, ˜Indictable-Only O¬ences “ the New Approach™, New Law Journal, 22 December
673
2000, p. 1891. Auld Report, pp. 479“81.
674
New CDA 1998, s. 51 inserted by para. 18 of Sch. 3 of the Act.
675
New CDA 1998, s. 51A inserted by para. 18 of Sch. 3 of the Act.
676
New CDA 1998, s. 51B inserted by para. 18 of Sch. 3 of the Act.
677
New ss. 3C and 5A of the Powers of Criminal Courts (Sentencing) Act 2000 inserted by paras.
23 and 26 of Sch. 3.
346 Pre-trial criminal proceedings


13. The voluntary bill of indictment
There was one procedural device to avoid committal proceedings “ the vol-
untary bill of indictment. This was an application to commit a defendant
direct to the Crown Court without going via the magistrates™ court. The appli-
cation was made to a High Court judge.678 Normally it was made when a
further defendant emerged after the committal proceedings were already com-
pleted. Instead of starting the committal proceedings again, the defendant was
belatedly sent for trial on the basis of the evidence already available. The appli-
cant supplied the judge with the committal papers, including proofs of all wit-
nesses, depositions and witness statements. Under the procedure, which
obtained until August 1999, prosecutors could, and often did, refuse to give
the defence copies of the documents presented to the judge in support of the
voluntary bill. The defendant was normally not even given leave to oppose
the application which was usually dealt with without a hearing, simply on the
papers.
Once the High Court judge had authorised a voluntary bill, the Court of
Appeal would not inquire into the exercise of the judge™s discretion.679 Nor was
judicial review available,680 but a Crown Court judge had an inherent jurisdic-
tion to prevent injustice or abuse of process.681
The 1990 Practice Direction stated that the judge could invite representations
from the proposed defendant but this was not normally done. The procedure
was therefore outside the normal rules of fairness and natural justice and,
arguably, was contrary to Article 6 of the European Convention on Human
Rights.682 It seems that this point was taken because in July 1999 a new Practice
Direction (Crimes: Voluntary Bills) was issued.683 Prosecutors were required to
give the prospective defendant notice of the application and to serve on him a
copy of all the documents delivered to the judge. He had to be informed that he
could make written submissions to the judge within nine working days. If this
procedure was not followed, the judge had to be so informed. The judge was
entitled to hold an oral hearing before deciding.
There are no statistics as to the extent of the use of the procedure. The Roskill
Committee on Fraud Trials (1986) said that it had been told that it was used at
the Central Criminal Court in about six to twelve cases each year.684
Lord Justice Auld in his report suggested that once committal proceedings
were abolished there would be little point in preserving the voluntary bill

678
The procedure goes back to 1859. It is now regulated by the Administration of Justice
(Miscellaneous Provisions) Act 1933, s. 2, Indictment (Procedure) Rules 1971, SI 1971/2084
and the Practice Direction (Crime: Voluntary Bills) [1990] 1 WLR 1633.
679
Roth¬eld (1937) 26 Cr App Rep 103.
680
R v. Manchester Crown Court, ex p Williams and Simpson [1990] Crim LR 654.
681
Wells [1995] 2 Cr App Rep 417.
682
See S. Farrell and D. Friedman, ˜Voluntary Bills of Indictment: the Administration of Justice
683
or a Rubber Stamp?™, Criminal Law Review, 1998, pp. 617“26. [1999] 4 All ER 63.
684
Roskill Report, p. 53, n. 24.
347 Case management and pre-trial preparation


procedure.685 However, neither the 2002 White Paper nor the Criminal Justice
Act 2003 mentioned the voluntary bill.


14. Case management and pre-trial preparation
The Criminal Procedure Rules 2005, Part 3, entitled ˜Case Management™,
applies to the management of all cases in magistrates™ and Crown Courts. Rule
3.2(1) states: ˜the court must further the overriding objective686by actively man-
aging the case™.
Active case management is now a central feature of the criminal justice
system. The need for it was emphasised by Lord Justice Judge in Jisl:
Justice must be done. The defendant is entitled to a fair trial and, which is some-
times overlooked, the prosecution is equally entitled to a reasonable opportu-
nity to present evidence against the defendant. It is not, however, a concomitant
of the entitlement to a fair trial that either or both sides are further entitled to
take as much time as they like or, for that matter, as long as counsel and solici-
tors or the defendants themselves think appropriate. Resources are limited. The
funding for courts and judges, for prosecuting and the vast majority of defence
lawyers is dependent on public money for which there are many competing
demands. Time itself is a resource. Every day unnecessarily used, while the trial
meanders sluggishly to its eventual conclusion, represents another day™s stress-
ful waiting for the remaining witnesses and the jurors in that particular trial,
and, no less important, continuing and increasing tension and worry for
another defendant or defendants, some of whom are remanded in custody, and
the witnesses in trials which are waiting their turn to be listed. It follows that the
sensible use of time requires judicial management and control.687
Improving the e¬ciency of the system is hardly a new theme. It has been
rehearsed over and over again for decades. Active case management is the latest
in a long line of initiatives that have been tried. Its immediate origin was the
report by Lord Justice Auld which was itself a direct o¬shoot of the ˜Woolf
reforms™ in the civil justice system.688 (It was a happy coincidence that the
person who launched the Criminal Procedure Rules in April 2005 was Lord
Woolf himself, in the role of Lord Chief Justice.)
Active case management is de¬ned in the Criminal Procedure Rules 3.2.2 as
˜including™:

685 686
Auld, Ch. 10, para. 58, pp. 418“19. As to which see p. 153 above.
687
[2004] EWCA Crim 696 at [114]. For an earlier statement to similar e¬ect see Chaaban [2003]
EWCA Crim 1012 where the Court of Appeal (Lord Justice Judge presiding) dismissed an
appeal brought on the ground that the trial judge had wrongly refused an adjournment to
allow the defence to obtain expert evidence. Unnecessary delay was to be avoided. An
adjournment culture was a thing of the past. On the culture of adjournments see F. Leverick
and P. Du¬, ˜Court Culture and Adjournments in Criminal Cases: A Tale of Four Courts™,
Criminal Law Review, 2002, pp. 39“52.
688
The Press Notice announcing the establishment of the Auld Review said: ˜this Review is a
complement to the highly successful review that Lord Woolf undertook of the civil courts™.
348 Pre-trial criminal proceedings


(a) the early identi¬cation of the real issues; (b) the early identi¬cation of the
needs of witnesses; (c) achieving certainty as to what must be done, by whom,
and when, in particular by the early setting of a timetable for the progress of the
case; (d) monitoring the progress of the case and compliance with directions;
(e) ensuring that evidence, whether disputed or not, is presented in the short-
est689 and clearest way; (f) discouraging delay, dealing with as many aspects of
the case as possible on the same occasion, and avoiding unnecessary hearings;
(g) encouraging the participants to co-operate in the progression of the case;
and (h) making use of technology.690
The parties and the court must appoint a Case Progression O¬cer (CPO) who
is responsible for progressing the case. The CPO for the parties must keep the
court informed of anything that will a¬ect progress and must be available to be
contacted during business hours.
The court may give directions on its own initiative as well as on application
by a party. It may receive applications by letter, telephone or by any other
means of electronic communication and may conduct hearings by such means
(r. 3.5).691
The parties can agree to vary a time limit ¬xed by a direction but only if the
variation does not a¬ect the date of any hearing that has been ¬xed or signi¬-
cantly a¬ects the progress of the case in any other way (r. 3.7).
The court™s extensive case management powers (set out in r. 3.5) include the
power to ˜specify the consequences of failing to comply with a direction™
(r. 3.5(2)(i)). It is not easy to see, however, what meaningful penalties can be
imposed by the courts on either the prosecution or the defence.
Case management of heavy cases poses special problems. In March 2005, the
Lord Chief Justice, Lord Woolf, handed down an eleven page ˜protocol for the
control and management of heavy fraud and other complex criminal cases™
directed at cases likely to last longer than eight weeks. 692
In August 2006, the DCA issued a consultation paper regarding case man-
agement in very high cost cases693 which notoriously absorb a wholly dispro-
portionate share of Crown Court expenditure.694 The consultation paper
proposed that the trial judge should have a new “ and unprecedented “ power
to order the termination of a barrister™s or solicitor™s involvement in the case
where they were in breach of their professional rules of conduct, including

689
In K [2006] EWCA Crim 724, [2006] Crim LR, 1012 the Court of Appeal said that the judge™s
case management powers at the pre-trial stage included the right to restrict argument to
written submissions. He was not bound to allow oral submissions and he certainly could put a
time-limit on them.
690
For critical commentary see P. Plowden, ˜ Case Management and the Criminal Procedure
Rules™, 155 New Law Journal, 18 March 2005, p. 416.
691
For an account of virtual plea and directions hearings conducted online see Counsel, June
692
2004, p. 20. [2005] 2 All ER 429.
693
DCA, Proposals to Create Judicial Powers to Manage Con¬‚ict of Interest and Capacity Issues in
Very High Cost Cases, consultation paper 17/06.
694
1 per cent of Crown Court cases absorb 50 per cent of Crown Court legal aid expenditure.
349 Case management and pre-trial preparation


where there is a con¬ct of interest or where the lawyer ˜lacks su¬cient capacity
adequately to represent their client, such that the e¬cient progress of the case
would be impeded™ (para. 5). The defendant would then have up to three weeks
in which to apply for a new representation order.


Pre-trial hearings
Lord Justice Auld™s report gave strong support to the notion of case manage-
ment with emphasis on the value of early judicial involvement: ˜the sooner the
court takes hold of the case at an early preliminary stage, the better™.695 The
rationale was that the parties did not prepare the case for trial as speedily or
e¬ciently as they should and that they needed the goad of the court to make
them do their job properly. The vehicle for the application of the goad, Auld
said, was a pre-trial hearing of some sort. Pre-trial hearings take various forms:

Plea and case management hearings (PCMH)
Every Crown Court case, other than serious fraud and other complex or long
cases for which statutory preparatory hearings (see below) are appropriate, now
has a PCMH, formerly known as a plea and directions hearing (PDH). The
PDH system was put in place by a Practice Direction in 1995.696 The PCMH
replaced it by a Practice Direction in 2005.697 The main purpose of the
PCMH/PDH is to try to identify the cases that can be dealt with either imme-
diately or very quickly, especially those in which the defendant intends to plead
guilty. Where a not guilty plea is con¬rmed, there is a lengthy questionnaire to
be completed by the lawyers698 which is designed to identify the issues and to
enable the judge to give directions that will assist preparation for trial. The
Practice Direction states: ˜Active case management at the PCMH should reduce
the number of ine¬ective and cracked trials and delays during the trial to resolve
legal issues™.699 It adds that the e¬ectiveness of a PCMH depended in large
measure upon preparation by all concerned and upon the presence of the trial


695
Chapter 10, para. 204, p. 481.
696
Crown Court: Plea and Directions Hearings [2002] 3 All ER 904 Practice Direction “
consolidation “ Part 41 at p. 930. It had been recommended by the Government™s Working
Group on Pre-Trial Issues in a report issued, but not published, in November 1990. The
Runciman Royal Commission, by ten to one, recommended a much more elaborate pre-trial
regime “ see the Report, Ch. 7, paras. 1“36, pp. 101“9. The writer, dissenting, urged that the
Commission™s proposed pre-trial regime would make the system less rather than more
e¬cient and urged the introduction of PDHs “ Report, pp. 223“33. The Government decided
to introduce PDHs.
697
Amendment to the Consolidated Criminal Practice Direction (Crime: Case Management)
[2005] 3 All ER 91. It took e¬ect on 4 April 2005, the day the Criminal Procedure Rules came
into force.
698
For the text for PDHs see Annex D of the Practice Direction [2002] 3 All ER at 957“60. For the
text for PCMHs see Annex E9 and the Guidance Note Annex E10 “ www.courtservice.gov.uk.
There was a great deal of criticism of the ¬rst version of the form and in the summer of 2006 a
699
new version was drafted by the Rules Committee. Paragraph IV.41.8.
350 Pre-trial criminal proceedings


advocate or an advocate who was able to make decisions. (This is frequently a
problem.700)
When the PCMH was ¬rst introduced in 2005 the Criminal Bar was greatly
exercised by the fact that it involved more work than the PDH with no increase
in remuneration. There was even brie¬‚y a strike. As will be seen (pp. 620“21
below), Lord Carter™s review of legal aid remuneration (July 2006) recommended
signi¬cant changes aimed at providing more money for the work done at the pre-
trial stage “ to be implemented in April 2007. (At the time of writing the
Government had not yet announced whether it accepted the recommendation.)

Preparatory hearings under the Criminal Justice Act 1987, ss. 7“10 for serious or

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