Defendants should be advised against entering a plea to a charge(s) without legal representation where there is a real likelihood of imprisonment, and the duty solicitor should not generally accept instructions to represent a person on a guilty plea in these circumstances [see previous information in this chapter; and the Sentencing chapter for guidance on the issue of the likelihood of imprisonment]. However, there are some circumstances where the duty solicitor may decide to accept instructions to appear as duty solicitor on a guilty plea where there is a likely penalty of imprisonment.
There are some exceptional cases involving people in custody for whom the duty solicitor may present a guilty plea. As always, this should only be done where there is sufficient time to obtain proper instructions, to consider whether the defendant is in fact guilty of the offence(s), and to obtain proper instructions on the allegations, any alleged prior record and any relevant circumstances in mitigation of penalty.
Such exceptional cases include:
- Situations where the person is likely to be imprisoned on a plea of guilty, but the gaol term is likely to be shorter than the time it would take to arrange for their representation (usually between 1-3 weeks).
- Situations where the person has already been in custody for as long or longer than the term of imprisonment he or she could reasonably hope to receive. In such cases the Court is entitled to take into account the time already served and impose no further penalty. Where the duty solicitor is not sure of the likely outcome of such an application, they should tactfully seek an intimation from the bench as to the Court’s views about the likely sentence, and/or seek senior solicitor advice.
The duty solicitor has discretion to conduct pleas of guilty, if time permits, for a defendant who is not in custody and where:
- the defendant would be eligible for legal aid on the means/assets criteria but is ineligible on guidelines, because the charge is minor and would not potentially attract a sentence of imprisonment; and
- is unable to represent themselves adequately due to some compelling disadvantage which has the potential to lead to a miscarriage of justice.
Some examples of offences which may arise in this situation are:
- first offence shoplifting
- minor property damage
- offensive language
- disorderly behaviour
- drink driving and traffic offences
The duty solicitor will almost always be able to justify conducting a plea of guilty provided there is no other consideration stopping them from doing so because there is always potential for a miscarriage of justice if a defendant appears unrepresented [see considerations as discussed in this chapter]. Some reasons why a defendant is unable to adequately represent themself are:
Youth: many young defendants are afraid to tell their parents they have been charged with an offence.
Age: elderly people often suffer extreme embarrassment at appearing before the court and cannot communicate effectively.
Language difficulties: the Court will arrange for an interpreter, however the defendant may continue to require the assistance of the duty solicitor.
Physical or mental health problems: it is crucial that particular difficulties be explained to the Court both in mitigation of penalty and to guard against an inappropriate or excessive form of penalty being ordered.
Lack of discretionary income: for example women without their own source of income who are ashamed or afraid to tell their partners that they have been charged with an offence or to ask for money to pay for legal representation.
Any other reason: where it appears likely that the defendant would not be dealt with fairly unless the duty solicitor appears for them and speaks on their behalf.