Understanding rape sentencing: Ken Clarke and the 'guilty plea' debate

In this article, first published on the Halsbury's Law Exchange blog, Felicity Gerry looks at the furore surrounding Ken Clarke's comments on rape sentencing

This week, a proposed consultation on raising credit for a guilty plea to 50% was overshadowed by comments made by the Justice Secretary, Kenneth Clarke, on a radio programme. Asked how such a proposal would affect rape cases, he replied that there were different categories of rape from teen sex to serious rape and ended up apologising for insulting rape victims.

He was obviously badly briefed and he got the law wrong. Teen sex is not rape and in this country we do not have categories of rape. There are different sentencing brackets depending on the aggravating and mitigating features of particular offences: a multiple rapist receives a longer sentence than a first-time offender. These are principles the public understand. A sentence should be commensurate with the seriousness of the offence.

Substantial discounts for guilty pleas do not reflect this and fail to do justice. The argument that it would save money is a fatuous one since few offenders plead guilty to avoid prison as sentences can be so long that they may as well take a chance at trial. For judges, I am sure, they really want to announce a proper sentence, not reduce it by half and on top tell the offender he will be released at half way or earlier on a tag.

It is time for the administration to stop interfering in the judicial process. Perhaps the money wasted on policy makers and statisticians could be better spent on court proceedings.

Last year I prosecuted a multiple rape of a 10-year-old girl with severe learning difficulties by her stepfather. The rules already say he can have a shorter sentence if he pleads guilty but like most offenders he does not want to be labelled a rapist or be on the sex offenders register. He also knows that whether he pleads guilty or is convicted, if the judge thinks he's dangerous (which, let's face it, he is, if he likes raping children with special needs) then even on a guilty plea he will be given an IPP sentence where he will have to apply to be released and no one can guarantee he will ever be let out. No amount of discounting is going to change his mind.

At trial, the child became confused. She needed a speech therapist to help her communicate. He was acquitted of all bar one allegation of rape which, fortunately, was supported by scientific and computer evidence. The consequence of not pleading guilty was that he has had some success. Seventy percent of rape trials result in conviction which means 30% do not. Most defendants take their chances. This does not just apply to rape. Burglars, robbers and drug dealers will seek a trial if there is a chance, on the evidence, that they could be acquitted. For many, a long-term sentence is doable as they know they will be released early in any event.

The Justice Secretary attempted to argue that a discount on sentence would reward a defendant for saving a victim giving evidence. This is already recognised in the existing discount system. It is frankly illogical to further reward those who may well have been caught red-handed. To save money, currently being launched in Birmingham is an early plea system aimed at improving efficiency in regard to guilty plea cases.

Dedicated CPS lawyers look at all Sexual Offences Act, s 51 offences and either/or cases before they are heard at the magistrates' court to decide if they think the cases are likely to be a guilty plea. If so, then they ask the defence if they wish to enter an early guilty plea. The case is then committed on the advance disclosure papers. Statistics of a similar scheme in Chelmsford have apparently shown that about 50% of defendants have opted into the new scheme and then about 80% or 90% pleaded guilty at the Crown Court.

This obsession with statistics puts prosecutors under pressure to accept guilty pleas to lesser offences and means that pleas are entered without full evidence. Logically the stats must also mean that 10%-20% then do not plead guilty as they have indicated. My instinct indicates that neither victims nor defendants are properly represented by such procedures and many people will be put under pressure to plead guilty regardless of the merits of their case, ultimately risking real miscarriages of justice.

In the end, if the consultation is successful and the 50% discount for plea becomes law, all that will happen is that the Sentencing Guidelines Council will be under pressure to set artificially high guidelines to cope with daft discounts and the Daily Mail will forget that the Justice Secretary did not understand the law and blame soft sentences on judges. Perhaps the money is best saved by looking at the administration as in reality Crown Court cases rely on investigation and presentation, the rest is unnecessary and expensive paperwork which obviously not even the Justice Secretary reads.

Felicity Gerry is a criminal barrister and a contributor to the Halsbury's Law Exchange blog. Click here to follow the Halsbury's Law Exchange on Twitter and click here to follow Felicity.