Newsletters Criminal Regulatory 8th Nov 2016

Credit For Guilty Plea: An Update

Next year could see an end to maximum credit for many defendants pleading guilty. The Sentencing Council held a consultation in respect of a new draft guideline between February and May this year and intends to issue a new guideline next spring.

The approach taken by the new draft guideline (available here) is as follows:

  1. An individual will receive the maximum discount of one third if they plead guilty “at the first stage of proceedings” rather than at the first reasonable opportunity. “The first stage” is the first appearance at the magistrates’ court in summary only cases; the allocation hearing at the magistrates’ court in either way cases; and the first hearing in the Crown Cout in indictable-only cases.
  1. The maximum reduction after that stage will be one fifth, rather than one quarter.

Some leeway is given by a list of exceptions, which include where a defendant cannot decide on plea without legal advice and/or sight of the evidence. This is not as generous as it might seem. There is a requirement that “the offender – although he has not indicated a guilty plea – has identified to the court and/or the prosecutor the conduct which he admits”. The language of this exception is also rather discouraging – the Council notes “the exception does not permit a defendant to say nothing until the prosecution has served all its evidence and then receive the maximum reduction. The defendant is required to accept what he knows he has done at an early stage… The intention is that the exception should only apply when the offender genuinely does not know whether or not he is guilty; it is not an invitation to ‘play the system’”.

There is also no requirement to enter a plea where the prosecution have not served initial details of their case [‘IDPC’]. Significantly in complex cases involving corporate defendants, a reduction of up to one third may be made for a late plea where the trial would otherwise have taken up a very substantial amount of court time and/or would have involved a very substantial number of live witnesses. Finally, credit is preserved where an offer of an early plea to a lesser offence is rejected but the individual is ultimately convicted of that offence rather than a more serious count on the indictment. ,

The current Council definitive guideline on guilty plea was issued in 2007. The Council consultation explains that courts are applying the guideline inconsistently and some reductions for guilty plea are higher than they ought to be, and that the new guideline is aimed at improving “clarity and consistency”. The consultation explicitly states that “the revised guideline seeks to encourage those defendants who are aware of their guilt to enter a plea as early in the court process as possible”.

How much of the draft guideline is retained in the definitive version remains to be seen. The Council’s website indicates that the consultees “have raised a number of issues that require careful reflection”. The Commons Justice Select Committee have expressed concern about the potential impact on corporate defendants who may need to conduct detailed investigations before deciding how to plead. The Law Society have raised the inadequacy of IDPC and prosecution case summaries as a bar to early pleas. It is clear that the consultation exercise has given the Council a great deal to think about.

The possible reduction from one third to 20% would be highly significant for corporate defendants at risk of six or seven figure fines and so this is an area well worth watching.

Sarah Przybylska

7th November 2016

Categories: Newsletters