Chris Gillespie considers the Sentencing Council’s Definitive Guideline on Reduction in Sentence for a Guilty Plea

Today, following a lengthy consultation, the Sentencing Council has published its Definitive Guideline on Reduction in Sentence for a Guilty Plea, which comes into force for all cases where the first hearing is on or after 1^st June 2017.

As anticipated the one third reduction should now only be given when a defendant indicates a guilty plea at the first stage of the proceedings. The first stage is normally the first hearing at which a plea or indication of plea is sought and recorded by the court. Thereafter the maximum reduction will be a quarter, sliding down to 10% for a plea on the day of trial.

For the vast majority of criminal cases, which are either way or summary only, the first stage will be the first appearance at the magistrates’ court. There was a fear that this approach would automatically apply to criminal regulatory cases as well. Practitioners were concerned that in many cases, which involve analysing whether or not a defendant can establish a defence on the balance of probabilities, the first appearance was far too soon in the process. The HSLA and ELA made detailed submissions to this effect during the consultation period.

Without specifically referring to criminal regulatory cases the Guideline acknowledges that a reduction of one third may still be appropriate where there are particular circumstances that significantly reduce the defendant’s ability to understand what is alleged or, perhaps more relevantly, otherwise make it unreasonable to expect the defendant to indicate a guilty plea sooner than in fact it does.

It should be noted that there is no hard and fast rule in criminal regulatory cases: the court must be satisfied that, for example, it was unreasonable on the facts of a particular case to expect a defendant to be able to indicate a plea. However, if there has been late service of lengthy, complex or important evidence or if it is necessary to obtain expert advice then these factors are certainly capable of founding a successful submission that a guilty plea could not have been indicated earlier.

Other important features of the Guideline include a clear and welcome statement that the strength of the evidence should have no effect on the level of the reduction. When a Newton Hearing is held and the court finds against the defendant the reduction available at the time the plea was notified or entered should be halved; if witnesses are called then even more credit may be lost.