The Law Commission proposals are easily read, thoughtful, bold and constructive. They show the benefit of ‘outsider’ thinking as well as insider expertise.

They miss, nevertheless,  the most simple reform of all. 

Any system (however carefully prescribed) will be gamed and the mechanisms “abused” if there are no cost risks for such misuse.

Judges should be obliged, after guilt is established but not otherwise, to consider whether the trial tactics have included pointless or ultimately unmerited exercises of rights we cherish to guard against false conviction. Abuse could include unnecessarily cruel cross-examination, tactical delay, pleading not guilty where guilt was obvious,  blackening the victim without good reason etc.

All such conduct would be treated as evidence of lack of remorse. The sentence should always be substantially greater in the absence of remorse.

The current lack of any cost to offenders for abusing defence rights was driven home to me after observing trials in France.  Discussions with my German law student interns had previously alerted me to the powerful effect of sanctions for  pointless appeals in keeping their appeal rates at a fraction of ours.  

This is not radical. I started in a general practice in 1974 with work that included minor court cases. There was general expectation that offending the judge with a stupid defence could risk a payback in sentencing.  I understand that there are still occasions on which judges warn counsel that their tactics could be counter-productive, and of course  the appeal courts approve taking into account the timing of a guilty plea on sentencing.  It is time to make this deterrent more general, more stringent, absolutely explicit, and unapologetic. 

Such a resuscitation of a natural corrective would follow the basic rule for most reform. First get the incentives right.

The right incentives will make up for inevitable deficiencies in detailed procedure, however carefully crafted. Such a change could and should be immediate. The judges could probably do it without a law change but it would be better required by statute. It would have a salutary influence across both the current and any modified system.

This is not a new theme for this blog. See here and here (but look for F E Smith's useful cautions to me in the comments on both).