Answers by Robert Banks, the barrister who writes Banks on Sentence and Banks on Sentence Compact. The main work is the second largest selling practitioner’s criminal text book and is used by judges for sentencing more than any other.
The main work is now in an App for an iPad, which is available from the Apple iTunes Store. It is priced at £64.99 and is regularly updated.
If you have access to a computer, follow us on : @BanksonSentence
Q My girlfriend read one of your tweets and said that it said that the government is reconsidering the sentencing powers of the Magistrates’ Court. I am hoping for a magistrate sentence for a bladed article offence and wonder whether this will affect my case. Can you help?
A Back in 2002, the government considered that there would be cost savings if magistrates were able pass sentences of 12 months for a single offence. It was thought this would save the costs of committals for trial and for sentence. As a result a clause was inserted into the Criminal Justice Act 2003. However, the provision was never brought into force, no doubt because somebody thought it may in fact be more expensive than the status quo. Clearly many defendants who would be sent to prison by the Magistrates’ Court under the new proposals, would under the current system not be given a prison sentence. This is because they have been remanded into custody and then when they pleaded guilty at the Crown Court they would receive a community sentence. Also, defendants would think twice of accepting summary trial, if they thought they could receive a 12-month sentence for one offence. Appeals would be far more common too. It may also be some MPs, with knowledge of the Magistrates’ Court thought that it would be quite wrong for defendants to receive such sentences from people with no legal qualifications.
When the new government published its sentencing Bill, the provision was to be repealed. Although there is nothing of significance in their Bill, the Ministry of Justice has now decided that they wish to retain the option of enacting this provision so there will be no repeal. However, I understand the government have no plans to bring the provisions into force. So that's all clear then? Not to me it isn't!
Back to your question. As there is no plan to bring the provisions into force and as this government has avoided making any of the necessary changes to our criminal law, one can assume that they will not be enacting this provision soon. In any event if they did, it would be a long time before it became law in the Magistrates’ Court. The political resistance could be significant. Magistrates would need to be retrained. Guidelines would have to be re-written. That means the change will not affect you.
Q I am charged with money laundering. I've no real defence but I don't agree with all of the prosecution case. I am however keen to retain a full discount for a plea. My barrister keeps putting the plea off, saying it's better to wait. But after the wait, not much has happened, so there is a danger that I will plead many months after my PCMH and my discount will be significantly reduced. What should I do to retain my full discount?
A I fear you may have already lost it but I don't have sufficient information to know for sure.
A defendant is entitled to a full discount if a plea is entered at the first ‘reasonable opportunity’. Although the guidelines indicate that this is usually before the court asks the defendant if he is guilty, most courts give a full discount if the plea is entered the first time the charges or the indictment is read to the defendant.
This area of sentencing has developed significantly both in law and tactically over the last few years. The following may be of interest.
If there is a dispute as to the facts, it is usually important for that to be raised with the prosecution with a view to a written basis of plea which ensures that the judge sentences you on a basis that you agree with. Where the main charge is contested, say murder, but the defendant wants to plead to an alternative, say manslaughter, the defendant will need to make his position clear at the start to ensure that he receives a full discount for a plea to manslaughter. So if the prosecution is told early in writing that there would be a plea to manslaughter and the defendant admits he was responsible for the death then if many months later the prosecution agreed to accept a plea to manslaughter, the defendant will receive, in normal circumstances, the full discount. However if the defendant says the charges are contested and fails to outline the area of dispute, the full discount will be in jeopardy.
There are occasions where cases are so large that the prosecution are not able to serve the main papers before the PCMH. There are other cases when they not only fail to serve the full set of papers but they also fail to serve the necessary schedules etc. to understand the prosecution case. It has been recently decided that is quite understandable if defendants don't plead to offences when it is unclear what offending they would admit. In these two circumstances, the defence frequently tell the judge that, ‘on the current served papers they are not able to advise their clients properly and as a result they are not able to plead guilty. However when all the papers have been served they hope they will reach an agreed basis with the prosecution, so that the plea of guilty can be entered’. They then ask the judge to indicate that he or she will consider that the first reasonable opportunity to plead guilty was when the prosecution case was known and as a result the defendants would not be prejudiced from delaying their plea. Sensible judges usually agree to this course.
If the defendant would have pleaded guilty but seeks on a preliminary issue to argue that key sections of the prosecution case are inadmissible or that the prosecution is an abuse of process in the hope that there can never be a trial, any plea of guilty entered after these legal applications have been made and have failed will not normally attract a full discount.
There is also a financial advantage to lawyers if they delay a plea of guilty because the fee in many circumstances can be significantly greater after delay that if the plea is entered at the PCMH.
I hope this is helpful.
Please start your letter with the question you want answered and send the letter to Inside Time with it marked for Robert Banks. Please make sure your question concerns sentence and not conviction or release. Unless you say you don’t want your question and answer published it will be assumed you don’t have an objection to publication. No-one will have their identity revealed. Facts which indicate a prisoner’s identity will not be printed. Letters which a) are without an address, b) which cannot be read, or c) are sent direct cannot be answered. Letters have to be sent from Inside Time to a solicitor. If your solicitor wants to see a previous question and answer, they are posted on the website,
It is usually not possible to determine whether a particular defendant has grounds of appeal without seeing all the paperwork. Analysing all the paperwork is not possible. The column is designed for simple questions and answers.