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Prosecution and police to decide sentence where defendant pleads guilty to minor offences

Posted by James Hammerton @ 2:57 am on 22 January, 2006.
Categories democracy and the rule of law.
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Recently, the government has proposed that if a suspect pleads guilty to a minor offence, the sentence will be decided between the police and prosecutor (note no mention of the defence!):

Lord Falconer, the Constitutional Affairs Secretary, and Mike O’Brien, the solicitor general, are drawing up proposals to bypass the court process in as many as half the cases heard by magistrates every year.

Defendants who plead guilty to offences such as shoplifting, theft and criminal damage would have their punishment decided by the prosecutor, in consultation with the police, instead of going to court. Ministers believe that about half of the two million cases heard annually by magistrates could be handled in that way.

The plan would represent a revolution in the criminal justice system which has always been based on the principle that sentencing should be weighed in court, with the defence entering a plea in mitigation in response to the prosecution’s case.

Probation officers and magistrates are worried about power over sentencing being handed to the police and prosecutors. Judges are also likely to worry about any proposal to undermine the court system. The Government’s attempt to end jury trials in some cases was blocked by the Lords.

This is an insidious measure. The courts are there not just to decide guilt or innocence but to decide on an appropriate sentence in an impartial manner. Allowing the police and prosecution to decide on a sentence between themselves violates this impartiality — these parties have vested interests in the case. Also the defence is notably absent from the decision.

If the proposal goes ahead, there will be a strong incentive for the police/prosecution to pressure a suspect to admitting guilt — it will be lot less effort and lot less time consuming if the suspect admits guilt and the police and prosecution get to decide the sentence. The police will notch up a conviction and save time and money and will thus be quite happy with such an outcome. This does not mean that such an outcome would be just.

The proposal is thus in many ways typical of the Blair administration — it puts administrative convenience and the saving of money before justice, whilst weakening the power of the courts and replacing the rule of law with the rule of men.

Also, as the Talk Politics blog notes, the European Convention on Human Rights prevents someone being either imprisoned or forced to carry out a task (e.g. community service) without a fair hearing before a court, leaving only a fine as a possible punishment in such cases. So unless Blair intends derogating from the ECHR (or, perhaps, arguing that the police and prosecution themselves constitute a court!) the only sentence the police/prosecution could pass is a fine. Is having the perpetrator paying a fine likely to be what the victim of a theft or criminal damage wants?

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