The sentencing guidelines for the sliding scale of sentence discounts in both England and Wales and Hong Kong have provided for judicial discretion to depart from the recommended sentence reductions. This chapter investigates the consistency of applying the sentencing guidelines in the two jurisdictions. It is found that in general, both English and Hong Kong courts adhere to the recommended guidelines. Multivariate analyses, however, using the sentence discount as the outcome reveal gender and confession to be significant factors for departing from guidelines, with female defendants and defendants who have confessed given a higher sentence discount. Moreover, when reviewing the sentencing process, inconsistencies occur when judges apply aggravating and mitigating factors, as well as the sentence discount for guilty pleas, which may lead to inconsistencies in sentence outcomes.

This chapter investigates which factors affect the timing of guilty pleas for defendants under the current regime of a quantified sliding scale of sentence discounts. Certain vulnerable defendants are found to be more likely to plead guilty such as young adult defendants. It is discovered that the stages of the criminal process preceding plea taking have been found to significantly affect plea outcomes. Defendants who have confessed to the police and who are represented by publicly funded lawyers are more likely to plead guilty, and to plead guilty earlier. Furthermore, the extant literature also points to defendants remanded in custody to be susceptible to pleading guilty earlier as well. Under a guilty plea process that features a sliding scale of sentence discounts, different factors may serve as potential pressures for defendants to plead guilty, and to plead guilty as early as possible.

Chapters 1 and 2 looked at how the official discourse is based on tactical defendants ‘playing the system’ and the justification for sentence discounts corresponding to the timing of guilty pleas is utilitarian benefits to the criminal justice system. This chapter offers an alternative perspective. First it argues that sentence discount for guilty pleas is a form of implicit plea bargaining despite the avoidance to officially recognise the practice of plea bargaining in different jurisdictions. Moreover, operating in tandem with advanced sentence indications and other stages of the criminal process, sentence discounts for guilty pleas arguably serve as pressure for defendants to plead guilty.

This chapter turns its attention to public opinion. A justification given for the sliding scale of sentence discounts for guilty pleas is that encouraging early guilty pleas is in the public interest. Yet extant research on public confidence in the courts and attitudes towards sentencing reveals that the public frequently perceives sentences as being ‘too lenient’. Consequently, while the aim of sentence discounts for guilty pleas is bolstering efficiency and promoting public confidence, they may actually have the adverse effect of reducing sentences that the public already considers too lenient. This chapter begins by examining the role that public opinion plays in sentencing before reviewing existing literature on public confidence in the courts and attitudes towards sentencing. The chapter also reviews the limited literature on public attitudes towards plea bargaining and sentence discounts. It then shows that the public is not supportive of sentence discounts for guilty pleas, especially large sentence reductions.

This chapter discusses the adoption, and rejection, of a quantified sliding scale of sentence in comparable legal jurisdictions. The chapter begins with England and Wales, where the sliding scale of sentence discounts was first standardised. It then looks at Hong Kong, where its sliding scale of sentence discounts was a judicial creation of the appellate court that took inspiration from the developments in England and Wales. Afterwards, this chapter examines certain Australian states that have moved towards a quantified sliding scale of sentence discounts. It then discusses the two jurisdictions of Scotland and New Zealand, which have rejected the quantified sliding scale of sentence discounts in favour of greater judicial discretion. It is shown that despite the varying responses to whether quantified guidelines for sentence discounts for guilty pleas should be implemented, all the jurisdictions surveyed agree that earlier guilty pleas should generally attract higher sentence discounts, primarily justified based on the perceived utilitarian benefits of early guilty pleas.

Existing literature points to guilty pleas leading to plea-trial disparity in sentences, with scholars referring to this as a ‘trial penalty’ or a ‘trial/jury tax’, while courts and policymakers use the terms ‘sentence discounts’ or ‘sentence reductions’. This chapter argues that plea trial and plea-timing disparities have negative consequences for the justice system, as well as that the sentence disparity should be conceptualised as a trial and late-plea penalty. Using the datasets from the Crown Court Sentencing Survey (CCSS) and the Hong Kong District Court compiled for this study, this chapter investigates the effects that the timing of guilty pleas may have on sentence outcomes. Interestingly, a late-plea penalty was found for England and Wales, whereas only a trial penalty was found for Hong Kong. The chapter concludes by discussing the implications of these results.

This chapter introduces readers to the history of the problem of ‘cracked trials’, that are trials that do not proceed on the scheduled day, yet does not need rescheduling, as the case has already reached an outcome. The predominant reason for this is the defendant entering a late guilty plea. According to official discourse, cracked trials are attributed to tactical defendants who ‘play the system’ by delaying their guilty pleas. This chapter also introduces readers to the sentence discount as a response to encouraging defendants to plead guilty, and to plead guilty as early as possible. Under the sliding scale of sentence discounts, the early you plead guilty, the greater the sentence discount you receive. The rest of the chapter outlines the rest of the book.

This chapter revisits the assumptions that have dominated official discourse about ‘cracked trials’ and the utilitarian benefits of a sliding scale of sentence discount. First, it investigates whether defendants did ‘play the system’ before the implementation of the quantified sliding scale of sentence discounts. From the limited studies available, the answer to this question is mixed at best. Second, this chapter investigates whether the sliding scale of sentence discounts has helped the courts resolve their problem of cracked trials. Data before and after the introduction of the sliding scale of sentence discounts suggest that not much has changed in terms of guilty plea rates, cracked trial rates, and average waiting time until trial, bringing into question the usefulness of the sliding scale in promoting efficiency. The rest of the chapter details the methodology and datasets for this book, namely the Crown Court Sentencing Survey and the Hong Kong District Court dataset, paving the way for the analyses in proceeding chapters.