PSR Before Plea

It's not a return to PSRs in not guilty cases - yes we used to - but I'm not at all sure we've covered this aspect of PSRs, apparently brought about as a consequence of Covid-19. This from NPS and Law Society last October:- 

Pre-Sentence Report Before Plea 

Introduction 

The purpose of this document is to create a clear operational process, so that pre-sentence reports can be prepared in advance of the magistrates’ court taking a plea at the first hearing. The signatories to the protocol have a responsibility to comply with it and the court and Crown Prosecution Service are encouraged to facilitate it. 

Legal basis 

• The parties have a duty to actively assist the court by early communication to establish the defendant’s likely plea at the first available opportunity.

• The court has a duty to obtain a pre-sentence report before considering community or custodial sentences unless it decides such a report is unnecessary. 

• The statutory definition of a pre-sentence report means a court may consider a presentence report which it has not commissioned, to meet its duty.

• The process also preserves the taking of a guilty plea by the court, following a clear acknowledgement of guilt.

Benefits 

The process will mutually benefit the court, defendant and criminal justice partners as it will: 

• enable the court, in suitable cases, to proceed efficiently and expeditiously to sentence following a guilty plea without adjourning or standing the case down for a pre-sentence report. 

• enable more flexibility in scheduling the pre-sentence report interview, which takes place prior to the hearing. The defence may ask the legal adviser, where necessary, to vary the first hearing date to ensure there is sufficient time to produce the report 

• reduce the time spent physically at court, when social distancing measures are in place, therefore protecting all parties’ welfare during the pandemic. 

Scope 

A pre-sentence report applies where: 

• it is anticipated that an adult defendant, charged to appear before a GAP or NGAP hearing on bail or postal requisition, will be sentenced in the magistrates’ court; for offences triable either way see Sentencing Council allocation guideline,

• a defendant is willing to indicate a guilty plea to all offences charged on the full prosecution basis. 

• a defence legal representative, on behalf of their client, requests a PSR Before Plea. 

This protocol does NOT apply to cases to be sent or committed for sentence to the Crown Court where CrimPD 3A 9 and guidance within the Better Case Management handbook should continue to apply.

The process is set out in Annex A. The form used to request a Pre-Sentence Report Before Plea is attached at Annex B (“the applicable form”). 

Compliance 

In the event of parties consistently failing to comply with their responsibilities under the protocol the matter is to be reported to the Local Criminal Justice Board. 

Signatories 

National Probation Service: Sonia Flynn Chief Probation Officer 

Law Society: Richard Atkinson & Ian Kelcey Co-Chairs Criminal Law Committee Approval by Senior Presiding Judge of England and Wales 

1st October 2020

--oo00oo--

The Probation Institute has recently published a position paper:- 

Use of the Protocol for "Pre-Sentence Report Before Plea"

The Probation Institute has considered the new Protocol for the preparation by the Probation Service, of a pre-sentence report (PSR) before plea, for use in the Magistrates Court where there is an intention to plead guilty and the legal representative has requested the PSR before plea. 

We understand the pressures – volume of cases and long delays, which will have led to the agreement of this Protocol. However there has long been professional practice that pre-sentence reports should only be prepared when a defendant has either pleaded guilty or been found guilty by the relevant court. In our view this practice ensures legal justice for the defendant, avoids pressure to plead guilty, and also ensures that, as far as is possible, the report writer is making enquiries and proposals for sentencing based on the agreed view of the offence/s. 

We regard the Protocol with caution therefore and hope to contribute to ensuring that its use, where considered appropriate, will be the exception not the rule, and should always take into account the interests of justice and follow professional practice carefully. 

We believe that there are risks attached to preparing the PSR before a plea is formally taken in court, or the trial completed. These risks are: 

• The defendant may be pleading guilty in order to receive a reduced sentence or to get out of custody after a long remand. If s/he would otherwise plead not guilty we suggest that this would be an injustice which should not be encouraged by Probation. 

• Sufficient information about the charge (from police, witnesses) may not be available before the plea is taken - the PSR is therefore written without sufficient knowledge to be credible for the court. 

• The protocol recognises that Probation may request that the date of the plea hearing is adjourned to allow time for a PSR before plea. In this case it is essential that sufficient time is provided to enable the necessary assessments and prepare a full report with researched sentencing options? Ten working days is suggested with a minimum of five days. It might be more constructive and beneficial to ask the court for an adjournment post plea or conviction. 

• If the defendant is on bail it is possible that further offences may be committed before the case reaches a court hearing. This would potentially invalidate the contents of the Pre-Sentence Report. 

Here are some of the issues that we consider should be taken into account when using the Protocol for Pre-Sentence Report before Plea. 

1. Has the defendant consented to the preparation of a Pre-Sentence Report before the plea or finding of guilt is established? Do they fully understand the implications of this? 

2. What is the exact legal charge to which the individual is willing to please guilty? Has it changed since arrest? Could it change again? 

3. Has the individual considered pleading not guilty at any stage? If so, what has changed?

4. In order to prepare a PSR the report writer will need to know the facts of the case. Is there an agreed version? Do you have the police statements? 

5. If you are preparing a report on an individual who believes that notwithstanding the plea, they are not guilty it is difficult to discuss accountability, remorse, reasons for this offending etc. This may also affect the willingness of the individual to engage with rehabilitation, particularly on a community sentence. 

6. The court should be made aware in the report that the PSR was prepared before either a plea or a finding of guilt were established. 

7. If at any stage in the preparation of the PSR it becomes apparent that the defendant’s position regarding a plea is unclear the preparation of the report should be paused and reviewed by relevant parties. The defendant’s legal representative should be informed.

Probation Institute 

April 2021

Lawyers Take Action

It looks like the legal profession is determined to take on the Government over Legal Aid cuts:-

Urgent Information for Members further to Ballot

Dear Colleague

As you will be aware there have been a series of meetings across the country to discuss action against the 8.75% cut which is effective for all new criminal legal aid work commencing tomorrow. These took place in conjunction with the on line ballot.

There was a meeting of London practitioners last night at which over 100 practitioners and over 100 members of The Independent Bar attended. The meeting overwhelmingly supported the motion that solicitors cannot take further instructions on new starts after midnight tonight. To do so would place us firmly in breach of our professional duty. Many of us signed a pledge in October 2013 in which we declared just this. In January we face a further cut on litigator fees, in some cases more than 50%. This means that we will be having to make choice in many cases as to whether we visit clients in prison and make a loss, or make do with limited instructions and the consequences that follow.

We are opposed to Dual contracting, and seek to persuade the MOJ, as we have consistently done that the cuts which give rise to this program of forced consolidation is not necessary and dangerous for the fragile system within which we operate. Mr Gove cannot say on one hand that he wishes to move away from a two tier justice system whilst also implementing this programme.

At the meeting last night we received strong indications that some firms would withdraw their bids. We are interested to hear from firms who wish to take this step, in order to assist our research.

Firms individually decided that they would decline new instructions from midnight 1st July in respect of all legally aided matters save for discharging their contractual obligations as duty solicitors.

Whether a client is represented as duty solicitor or not, no legal aid certificates will be applied for.

Firms are entitled to take the view that whilst there are short term concerns over the vulnerable and those accused of serious offences, they cannot be represented to a professional standard under the new rates.

The duty solicitor will be available to assist these clients, during the time they are detained in the police station. For this to be effective, the duty solicitor or representative might want to cover the slot without relying on back up.

The view of firms at the meeting is that they will not be accepting back up calls during this period.

We understand that the Ministry of Justice may be preparing to brief journalists with regards to such cases where clients have been left without representation. If any of you have counter takes of clients that have suffered under the existing system please forward them through.

Most of the Big firms have agreed to support this action and a few that haven’t have agreed to a “no poaching “policy.

This really is the last opportunity attempt to protect what we have been fighting for over the past two years, please don’t be out off by the “what ifs”, which have allowed the MOJ to do whatever they want to us.

See documents below that may assist together with a letter to Mr Gove from LCCSA & CLSA.

1. Protocol for the action

2. Note to duty solicitors as to how they can help

3. Note to advocates to hand to others at court who may be unaware of what do are not acting

4. Leaflet to client explain the action

5. Statement from LCCSA

Please let other firms in your area know about this action, and if you can arrange meetings.

LCCSA is not seeking to encourage any breach of contract. You have each signed your contract with the LAA and it is your responsibility to comply with your obligations under the said contract and you must ensure that you do so notwithstanding whatever decision you have reached as an individual.

AS SOON AS WE START WORKING AT THE NEW RATES WE ARE ACCEPTING THE MOJs DECISION TO IGNORE OUR REPRESENTATIONS AND PRESS AHEAD WITH THE CUTS IN THE ABSENCE OF THE PROMISED REVIEW.

Barristers Plan Action

There's always a danger that as a profession the battle with Chris Grayling and the government over the TR omnishambles means we take our eye off what's happening elsewhere. A good example concerns our legal colleagues and their battle with the very same minister over criminal legal aid cuts. 

I notice that the criminal bar are planning unprecedented direct action for January 6th, as reported here. I suspect they might be able to show us a thing or two about common purpose and solidarity:-

The bar has stood firm against further cuts, pointing out that no other profession has sustained cuts of the magnitude already imposed on us. We have been met only with the response that the Government needs to save money and that we will have to bear the brunt of it again.

In the past the bar has made polite protests and done no more with the result that we have been targeted for fee cuts on a repeated basis. There is now a strong feeling at the criminal bar that if these cuts are introduced they will make it impossible for many to continue in practice. The loss of a large number of good practitioners will either destroy the criminal bar or render it a small and ineffective group unable to prosecute and defend to the high standards that have been expected of them hitherto. The criminal justice system will suffer as a direct result of the cuts. Trials will take longer and Judges will be deprived of the help that they have rightly come to expect will be provided to them.

It is against the background and for the reasons set out above that many members of the criminal bar intend to attend a series of meetings across the country on Monday 6th January 2014 so that they can discuss their futures. They will be ready to resume by 2pm. It is not a decision that has been taken lightly.

It is of course a matter for each individual barrister to decide whether he or she will protest in this way. It is anticipated however that the likely consequence will be that Crown Courts throughout the land will not be able to sit until 2.00 pm.

The rest of this document sets out a suggested non-binding protocol to ensure that there is minimum inconvenience to the Courts and to lay clients.

The guiding principle should be that those who decide not to attend Court on the morning of the 6th January 2014 should give notice of their unavailability.

The Tide is Turning

So, Chris Grayling has decided on a humiliating climb-down over a key plank of his Legal Aid reforms. Faced with an absolutely solid wall of resistance from the legal profession to the imposition of centralised contracting and the removal of client choice of solicitor, he's decided to cave in on the principle ahead of his appearance at the Justice Affairs Select Committee on Wednesday.

Having previously said that basically clients were too thick to make informed choices about legal representation, all of a sudden their right to choose will remain as the Guardian reports here:-   

Acknowledging the strength of the campaign, Grayling said – in a statement released before he appears at the Commons justice select committee on Wednesday – that "client choice" would now be kept. 

He declared: "Removing the choice of solicitor for clients receiving criminal legal aid was only proposed in order to guarantee lawyers had enough business to make contracts viable. It is clear the profession regards client choice as important and so I expect to make changes that allow a choice of solicitor in the future.

"Any future scheme for criminal legal aid must guarantee that quality legal advice and representation is available, but we still need to make significant savings.

"I am therefore pleased the Law Society has acknowledged the government's requirement for savings. We agree that a managed market consolidation is the best way to meet the challenges of the future. We are discussing their proposal about how to achieve this."

Removal of client choice has been one the main focuses of opposition to the MoJ consultation on legal aid. Many questioned why a Conservative minister was so determined to impose a centralised contract system that will stifle competition between small businesses.

In a comment last month that came back to haunt him, Grayling defended the proposal, telling the Law Society Gazette: "I don't believe that most people who find themselves in our criminal justice system are great connoisseurs of legal skills. We know the people in our prisons and who come into our courts often come from the most difficult and challenged backgrounds."

Politics is only ever the art of the possible and here we have the first sign that if an idea is crap and lots of influential people keep reminding you about how crap it is, eventually you have to admit defeat and move quickly to a plan B. This government seem to have had rather more crap ideas than most, hence we have yet another u-turn to add to the long list to date.

I commented the other day on how glum Chris Grayling was looking during the Chancellor's recent cuts speech. I think the tide is turning for this previously smug-looking guy as his probation omnishambles rolls on. In politics there's only so many misjudgements, u-turns, cock-ups and bad luck allowed before your job begins to look a little less secure than it once did and there's bound to be a summer cabinet re-shuffle in the offing. Just thought I'd mention it.     

Is this Justice?

I see that HM Coroner is unhappy that the defence team acting for the PC who was recorded pushing over news vendor Ian Tomlinson during the G20 demonstrations have refused to hand over the results of their post mortem examination. They claim legal priviledge and say it is a defence document and therefore may withold it from CPS and the IPCC. Now not surprisingly CPS, being lawyers and part of the legal 'game', say they have no quarrel with this, but it serves to highlight a major flaw in our adversarial legal system. The suspicion of course is that any decision not to disclose must mean it does not help the defence case. For me it brings into sharp focus the fact that under our system the search for justice is not paramount - it's the game that is.

Quite a few years ago a notorious murder was committed on my patch and as is customary I was allocated the case to follow right through trial, conviction and ultimate sentence. The case was complex and hinged on the defence submission of not guilty to murder, but guilty to manslaughter on the grounds of diminished responsibility. As a result, expert psychiatric and psychology reports were commissioned by both the prosecution and defence - a total of nine if memory serves me correctly. It has always struck me as deeply worrying that, as if by magic, all the defence reports supported their proposition and the prosecution reports, vice versa. It became quite a battle of professional reputations and egos and not surprisingly the jury had the greatest difficulty trying to make sense of these eminent doctors in effect slagging each other off. They couldn't decide and a fresh trial was ordered and in the end only after some heavy handed summing up by the trial Judge, a fresh jury eventually delivered a 10 to 2 majority verdict of guilty to murder. Not at all satisfactory in my view, not least as a process for getting justice, but of course a very profitable game for all the professionals involved. I feel the answer is quite straight forward - all expert reports should be commissioned by the court, with disclosure to both prosecution and defence.