The New Guideline on Guilty Pleas: A Potential Source of Conflict Between Client and Adviser? 

The Sentencing Council’s Definitive Guideline on Reduction in Sentence for a Guilty Plea come into force for all cases where the first hearing takes place on or after 1 June 2017. It is perhaps the final piece of the jigsaw comprising the Guideline on Environmental Offences, the Guideline on Corporate Manslaughter, Health and Safety and Food Safety Offences and the Practice Direction on Allocation. What is plain from the face of the new Guideline is the importance placed on the saving of costs.

The most relevant and important parts of the Guideline for regulatory criminal lawyers are:

• Full credit for guilty pleas at “the first stage in the proceedings”, defined as “normally the first hearing at which a plea or indication of plea is sought and recorded.” The reduction at this stage will be one third sliding down to a maximum of 10% for a plea entered on the day of trial;

• A willingness to admit guilt in interview is a separate matter of mitigation to be taken into account prior to reducing the sentence for a guilty plea;

• The court should take no account of the strength of the evidence when determining the level of discount;

• Full credit may be retained where there are particular circumstances that significantly reduce the defendant’s ability to understand what is alleged or otherwise make it unreasonable to expect the defendant to indicate a guilty plea sooner than in fact it does;

• Where an offender’s version of events is rejected at a Newton hearing the Court should take into account the stage of proceedings the plea was indicated and the level of discount available then should normally be halved. Where witnesses are called during such a hearing, it may be appropriate further to decrease the reduction;

• A defendant convicted of a lesser or different offence is entitled to the credit he would have received at the time he unequivocally indicated such a plea. However, in the Crown Court unless he actually enters a guilty plea he will not be treated as having made an unequivocal indication.

There is a clear drive to deal with cases quickly. The passages dealing with admissions in interview being treated as mitigation to be taken into account prior to any discount for plea and the irrelevance of the strength of the evidence are to be welcomed. However, many of the offences faced by corporates are not straightforward and include defences or limitations to the offences, the burden of proving which is on the defendant. Other offences will require a detailed analysis of the structure of the corporate and/or whether certain acts can be imputed to it. In those circumstances a corporate may be justified in withholding an indication of plea until such time as it has received legal advice or has instructed its own expert.

The Guideline makes it clear that the courts are expected to investigate whether or not an indication could have been made earlier than it was. If it comes to the conclusion that the delay was not due to any lack of understanding or need for advice then full credit will not be available. In order to avoid the sentencing court deeming the first appearance in the magistrates’ court to be the first stage in the proceedings the defence will need to demonstrate its full engagement with the prosecution and the process.

There will be therefore increasing pressure from the courts on the defence in criminal regulatory cases to identify those cases which should plead at the earliest opportunity. More importantly, from the perspective of our clients, a delay in plea could lead to an increase of several hundred thousand pounds in the level of fine.

As ever, each case will be considered on its own merits. Many corporates face protracted investigations before charge. Senior officers are interviewed in depth and there is no real doubt as to the nature of the prosecution’s case. On the other hand there are numerous cases where at the outset the prosecution allegations appear ill-focused or exaggerated. On the face of the Guidelines even in those circumstances there would appear to be an onus on the defence to indicate what it might plead to if it wants to maintain full credit.

This has the potential to lead to conflict and a degree of mistrust between client and adviser. Many clients who see themselves as having a good defence to the case being advanced by the prosecution may well question why they are being advised to plead to other matters or at all.

Equally, for those who defend there is potentially a considerable tension between our traditional duties fearlessly to represent our clients and the perception that we might be collaborating with the prosecution to find a basis of plea on which the lawyers can agree.

Michael Hayton QC

Chris Gillespie