In this post, Ross Ludlow, Legal Support Assistant at Matrix Chambers, comments on the case of R v Maughan (Northern Ireland) [2022] UKSC 13. This case considered the Northern Irish approach to reduction in sentence for defendants who plead guilty to offences at an early stage of proceedings.
The Supreme Court was asked to consider two sentencing policies – firstly, that the stage at which the defendant indicates their intention to plead guilty is important, in that in order to be entitled to the maximum discount they must plead guilty at the earliest opportunity, and secondly, that the reduction should not be as great in cases where those defendants were caught ‘red-handed’.
Facts
The appellant and his brother were apprehended by police whilst fleeing in a stolen car containing a range of items that they had also stolen in a burglary earlier that day in Newcastle, County Down. Further enquiries ‘established compelling evidence including CCTV that in the previous three days the appellant and his brother had attempted to burgle’ and succeeded in the burgling of other properties.
Following his arrest, the appellant refused to leave his cell or to be interviewed by the police. He did not accept responsibility for any of the matters at hand. He was subsequently charged and brought before the Magistrates’ Court on the 26th of July 2016. He pleaded guilty at arraignment on the 14th of September 2016 to the charges which are the subject of this appeal. He had given no prior indication of an intention to plead guilty.
Judgments Below
The appellant was sentenced on the 21st of December 2016. The sentencing judge held that the appellant was entitled to a reduced discount to his sentence because he (i) failed to accept responsibility for his offending behaviour at interview or indicate an intention to plead guilty at any stage prior to arraignment and (ii) was caught red handed in respect of some of the offences.
The appellant appealed to the Court of Appeal in Northern Ireland, who dismissed the appeal but not without concluding that the sentencing policy on early admission ‘was more nuanced than described by the trial judge’. The appellant then appealed to the Supreme Court.
Judgment of the Supreme Court
The Supreme Court unanimously dismissed the appeal. The court considered the lawfulness of each of the sentencing policies in turn: referred to as the ‘earliest opportunity maximum reduction’ policy and the ‘reduction in discount when caught red-handed’ policy.
Underpinning the consideration of both policies was the fact that the administration of justice is a devolved responsibility in Northern Ireland, and that sentencing policy is largely set by the Court of Appeal in Northern Ireland. The Supreme Court recognised that the NI Court of Appeal was best placed to assess what policy changes were appropriate on account of the increased number of cases that it hears. The Supreme Court’s task was therefore not to comment generally on sentencing policies in Northern Ireland, but to decide whether or not the Court of Appeal had made an error of law on the facts of this case according to those policies.
(1) Earliest opportunity maximum reduction
Article 33 of the Criminal Justice (Northern Ireland) Order 1996 states that the court shall take into account the ‘stage in proceedings’ at which the defendant indicated their intention to plead guilty. The appellant argued that “proceedings” within the meaning of Article 33 did not include any stage prior to arraignment because in the Northern Irish criminal justice system, which still requires committal for trial, that was the first time the defendant was required to indicate whether they pleaded guilty. The appellant argued that the offender’s failure to admit wrongdoing prior to arraignment should therefore not be treated as relevant to the sentencing discount.
After reviewing case law on the definition of ‘criminal proceedings’ (most notably Attorney General’s Reference (No 2 of 2001) [2003] UKHL 68), a report by the Royal Commission on Criminal Justice and various statutory provisions, the Supreme Court held that “proceedings” within the meaning of Article 33 did not include the investigative process prior to charge or the issue of a summons. Crucially, it noted that:
“The term “proceedings for the offence” in article 33 contemplates an offence in respect of which proceedings have been issued. The police investigation by way of questioning is concerned with confirming or dispelling a suspicion that an offence has been committed. The offence which is the subject of proceedings only crystallises at the moment of charge, summons or, unusually, presentation of an indictment, in other words after the police interview.” [37]
The Court of Appeal in Northern Ireland is therefore entitled to adopt a sentencing policy which treats as relevant to the sentencing discount the failure to admit wrongdoing during interview, but the interview itself is not a part of ‘criminal proceedings’ (and so the impact on the discount is not automatic). The Court of Appeal in Northern Ireland made no error of law.
(2) Reduction in discount when caught red handed
The Supreme Court held that a reduction in discount where the offender has been caught red handed has long been recognised as a feature of sentencing practice throughout the United Kingdom. The purpose of the discount is to encourage guilty pleas to obtain the utilitarian benefits of saving time, cost, and providing reassurance for witnesses and victims.
However, where the prosecution case is overwhelming, the offender may be left with little realistic choice but to plead guilty. Such an offender might not deserve the same level of encouragement to plead guilty.
Although in England and Wales and in Scotland sentencing policy has changed in recent years so that full discount for an early plea is now given in cases where the offender has been caught red handed, this is not the case in Northern Ireland. That fact alone does not render unlawful the different policy adopted by the Northern Ireland courts, and there was nothing unlawful in applying a reduced discount in such circumstances.
Comment
The principal reasoning behind the court’s judgment is that sentencing policy in Northern Ireland is a matter for the Northern Irish courts, specifically the Court of Appeal. Northern Irish courts are not bound to follow the sentencing policies of England and Wales or Scotland.
Encouraging an early guilty plea is beneficial in terms of saving limited resources such as time and public funds, but more importantly saving witnesses and victims from the anxiety of testifying in what could be a lengthy trial; one which might not be for many months or years after the offence. An offender pleading guilty expedites justice, which is one of the overriding objectives of a criminal justice system.
However, caution ought to be exercised when considering the ‘earliest opportunity’ and the weight afforded to the interview before proceedings begin. In this particular case, the offender had been caught red-handed and knew very well the strength of the case against him even before the police interview. In other cases, the accused may not even be aware of the accusations against them until the interview itself. Offenders ought not to be punished for failing to admit wrongdoing until they were aware of the full case against them, and the evidence on which it was based. The stage at which this happens is fact specific and varies from case to case, and it is sensible that the wording in the judgment is only that failing to admit wrongdoing before proceedings is to be treated as ‘relevant’. This leaves room for discretion to be exercised on a case by case basis.
The decision on the first of the two policies is therefore a welcome one. Whilst failure to admit wrongdoing in interview is to be treated as ‘relevant’, this does not automatically mean that it will always prevent the full discount. A sensible balance is struck between encouraging offenders to admit wrongdoing as early as possible where the case against them is obvious (as in this case) whilst not automatically penalising those in other cases who are not aware of the full case against them until ‘proceedings’ begin.
It is sensible that Northern Irish Courts are free to employ their own sentencing policies. It was not the place of the Supreme Court to comment on the merits of the policy whereby those caught red-handed were entitled to a reduced discount; only to confirm that it was lawful for them to follow such a policy. Given that the Court of Appeal in Northern Ireland sees far more criminal cases than the Supreme Court, it best placed to identify which policies would be most appropriate in Northern Ireland.
Conclusion
It is worth noting that a review in 2019[1] into sentencing in Northern Ireland concluded that it would be desirable to have a clear understanding of the principles and purposes of sentencing in Northern Ireland, and criticised the then ‘piecemeal’ approach for impeding transparency and contributing to undermining public trust in the justice system. This led to the passing of the Judicial Council Act 2019 which sought to clarify sentencing policy in Northern Ireland. Whatever the merits of the sentencing policies themselves, the judgment in Maughan can be therefore be welcomed as one which provides certainty as to their scope, and to the Court of Appeal in Northern Ireland as the body with the prerogative to decide them.
[1] Department of Justice NI, ‘Sentencing Review: Northern Ireland. A Public Consultation’ (October 2019)