In yet more sentencing news, the Sentencing Council has published a new Definitive Guideline dealing with the reduction in sentence for a guilty plea.With an average of 95% of health and safety prosecutions resulting in conviction, entering a guilty plea looms large for the majority of defendants. So what does this new Guideline mean in practice and how can it potentially benefit those prosecuted?

The Guideline

Defendants pleading guilty at the earliest opportunity have long been afforded "credit" (i.e. a discount) of one third upon the sentence the Court would otherwise have imposed. However, inconsistency in application led to a need for clarification and a fresh impetus to influence offender behaviour.

The purpose of the new Guideline is to "encourage those who are going to plead guilty to do so as early in the court process as possible" to reduce the impact upon victims and witnesses, and to save public time and money on investigations and trials. In order to do this a clear distinction is drawn between the available credit/reduction at the first opportunity and following this point.

The Guideline will apply to all cases coming before the courts from 1 June 2017, regardless of the date the offence was committed.

One third, one fourth, one tenth...

The new guidance makes clear that unless "particular circumstances" apply the full 1/3 discount will only be available if the guilty plea is entered at the first hearing in the Magistrates' Court. After this point the maximum available credit is 1/4 which reduces on a sliding scale the nearer a defendant gets to the trial date, with 1/10 being appropriate on the day of trial. This is to be decreased further potentially to zero, if the plea is entered after a trial has started.

Pleading at the "first stage of proceedings"

To ensure the maximum reduction, if a decision to plead guilty is made, the plea should be entered at the first stage in proceedings.

This can cause difficulties for individuals and businesses prosecuted in complex areas of law like health and safety, environmental, food and fire safety or in some road traffic cases. Whether or not a defence is available may depend on prosecution disclosure which has not yet been forthcoming, input on technical matters from expert witnesses, or a myriad of other issues.

"With an average of 95% of health and safety prosecutions resulting in conviction, entering a guilty plea looms large for the majority of defendants. So what does this new Guideline mean in practice and how can it potentially benefit those prosecuted?

Strategic decisions

Previously, there was a tendency to avoid giving an indication on plea at the first Magistrates' Court hearing, where the matter would inevitably proceed to the Crown Court. This would provide further time for the defendant to weigh up the evidence and would trigger further disclosure from the prosecution. However, this trend appeared to be on the decline as more cases were dealt with by the Magistrates' Courts, following the decision to grant them unlimited sentencing powers.

In light of this Guideline we may see this practice reduce further still, with the likelihood of even more cases being sentenced in the Magistrates' Court. For example, if a business convicted of a health and safety breach is expecting a fine with a starting point of 1.5m, the difference between pleading at the Magistrates' Court and the Crown Court could now be significant:

  • plead guilty before the Magistrates, the fine would be reduced by 500,000; but
  • plead guilty before the Crown Court, it would be reduced by a maximum of 375,000.

However, the Guideline specifically makes reference to those cases where the "court is satisfied that there were particular circumstances which significantly reduced the defendant's ability to understand what was alleged or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner than was done". The court should take care to distinguish cases where the delay is required to receive advice or have sight of the evidence, against those where a plea is delayed, merely to assess the strength of the evidence. This exception applies to all cases and will be made on a case by case basis. However, it looks especially apt to apply to many regulatory offences.

Practical tips

Defendants facing prosecution need to ensure they obtain an early assessment of their case. This helps form a strategy for dealing with the investigation, potentially opening up other fine-reducing mitigating features, and allows a swift decision on plea at the point of prosecution.

Where there are legitimate reasons why a plea cannot be entered at the first stage in proceedings, it is vital for defendants to ensure the court is fully aware of those reasons and to ensure any delay can be justified so as to potentially avail themselves of a significantly higher proportion of discount for the admission of liability.