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22 Jun 2011

Ken Clarke’s plea ignored

In yet another policy U-turn, the government yesterday abandoned plans to introduce 50% sentencing discounts for early pleas of guilty and announced wide-ranging proposals for criminal justice and legal aid reforms. In recent weeks, the Tory-led coalition has seemed confused between the aims of cost-saving and punishing criminals to the fullest extent: David Cameron clearly wants to appear tough on crime, while Kenneth Clarke grapples with the need to reduce his £9bn budget by 25% during this parliament and press ahead with his ‘rehabilitation revolution’. Keeping up with the coalition’s climb-downs is becoming increasingly difficult as Cameron once again, rightly or wrongly, panders to popular reaction and leaves a cabinet colleague out in the cold.

The Legal Aid, Sentencing and Punishment of Offenders Bill, published on 21 June by Kenneth Clarke, is 196 pages long and contains an extraordinary range of measures to reform legal aid and criminal sentencing. The much-maligned 50% discount for early pleas of guilty is conspicuous in its absence – dropped in relation to all offences – but other expected reforms are included, such as community orders with curfews, travel bans and the diversion of mentally ill offenders and those with drug and alcohol problems. There are new “honesty in sentencing” instructions for judges and measures to ensure those on remand are not held unnecessarily in custody.

David Cameron also announced proposals yesterday – which are very surprisingly not included in the extensive new Bill published – including a ‘Tony Martin’ law protecting homeowners and shopkeepers who use reasonable force to defend their property, a compulsory jail term for offenders threatening somebody with a knife, and the introduction of the delayed release of repeat serious sex and violent offenders until they are two thirds of the way through their sentence. But what will the effect of these reforms be?

Although one of the aims of Ken Clarke’s original proposals was seemingly to reduce the prison population and therefore cut costs, these proposals would seem only to increase prisoner numbers. Amid public outcry, the proposal to introduce a 50% discount for an early plea of guilty was partly justified on the basis that fewer people in prison would lead to savings of some £130m, which the government now says will be saved through ‘efficiencies’ elsewhere in the Ministry of Justice. This probably means that we are heading towards further significant cuts to legal aid. Indeed, when the list of top legal aid earners was published late last week, it was easy to predict that further cuts would follow soon. Although reducing the numbers of prisoners on remand for offences for which they are unlikely to be jailed is to be welcomed and the other hard-line sentencing proposals introduced yesterday may win the government some short term political advantage, if the proposed reforms go ahead there will be more people in prison for longer and costing the taxpayer more.

It is not yet clear exactly what the extent of cuts will be, but cuts to legal aid are almost always a false economy. The courts are likely to get more clogged up with unrepresented defendants who may have language difficulties or mental health problems; trials will take longer, appeals will be more common and access to justice will be restricted.

David Cameron’s announcement that he plans to introduce legislation that will make clear that homeowners and shopkeepers will not be prosecuted for using reasonable force to defend their property appears to be little more than politicking. Such legislation would make little or no difference to law as it stands, which is clear in that reasonable force can be used in self-defence.

The wide-ranging Bill, and David Cameron’s additional proposals, will take some time to digest. It will be interesting to see how many of the measures make it into law, but there is no doubt that the Legal Aid, Sentencing and Punishment of Offenders Bill represents a further challenge to legal aid practitioners and a stance on punishing criminals that will cost more not less.

Watch Newsnight’s item on sentencing, with a contribution from Robert Brown – http://www.bbc.co.uk/programmes/b0125h25, 32 minutes into the programme.

Corker Binning is a law firm specialising in fraud and criminal cases of all kinds.  For more information call us on 020 7353 6000.


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