Judge J revisited 2

This incident occurred at a time when the Court of Appeal had changed the rules. Up until then the position had been that it was permissible for counsel for the defence (obviously accompanied by counsel for the prosecution) to go and visit the judge for an indication. The indication that was requested was whether on a plea of guilty the client would go to prison or not. Although obviously a plea would only ever be entered on instructions, it is not uncommon for the defendant (who will know the rules of the game, so will know that if they tell their barrister they are guilty or tell the barrister facts suggesting they are guilty that the barrister will not be able to suggest the contrary and so will not be able to represent them on a normal contested trial) to want to see what was on offer before deciding whether to plead or not. If they were going to go to prison even if they pleaded they would often want to give it a run. However if they were not going to go to prison on a plea then they were happy to plead.

This caused the problem that there was concern that innocent people might plead guilty in order to avoid going to prison. (Although of course equally or more significantly guilty people might not have wanted to make the system grind to its ultimate conclusion if they were not going to be sent immediately to prison). Therefore the procedure changed. When counsel went in there was someone who would take a note of what was said. The only indication that the judge was supposed to give was whether the person would be sent to prison in any event or not. Therefore the judge could say "I will not be sending this person to prison whether he or she pleads guilty or not" or they could say "I am minded to send this person to prison, subject to what is said in mitigation, whether they plead or not although obviously a plea will affect the length of sentence" (since credit is always given for a guilty plea). What they were not allowed to stay was that whereas prison was on the cards, on a guilty plea it would not be. Of course that was precisely the information which counsel and the defendant usually wanted to know.

This incident occurred shortly after the change. Mr G wanted an indication, and notwithstanding the new change he decided to seek one. Counsel for the prosecution and defence attended, and there was someone to take a note. Judge J pointed out that this was the sort of situation in which which previously judges were allowed to give an indication, but that now the Court of Appeal had indicated that judges should not give such indications and that therefore he could not give an indication. They all got up to leave, Mr G at the end of the queue. As he was leaving the room as the last person, the judge said "Mr G", Mr G popped his head round the door, and whilst the judge said nothing he gave him to big thumbs up signs with his hands. Obviously meaning that if his client pleaded he would not be sent to prison.