In the wake of the UK’s more prescriptive approach towards sentencing adopted in the recent Definitive Sentencing Guidelines which came into force on 1 February 2016, the UK Sentencing Council has now turned its focus to the guidelines regarding the credit available for the entering of a guilty plea in criminal cases. The Sentencing Council entered into consultation on its proposed new guideline “Reduction in Sentence for a Guilty Plea Guideline: Consultation” on 11 February 2016, with responses due by the 5 May 2016.

In order to reduce the number of unnecessary trials, offenders are incentivised under UK law, to plead guilty at the earliest opportunity and may receive up to one third credit off any potential sentence. However, the Sentencing Council is consulting on whether further clarification is required on how this principle is applied in practice.

Section 144 of the Criminal Justice Act 2003 states “in determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that court or another court, a court must take into account: (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and (b) the circumstances in which this indication was given.”

The consultation results from a collection of data from the Crown Court Sentencing Survey (from 1 October 2010 to 31 March 2015) which suggested that the current guideline, produced by the Council’s predecessor (the Sentencing Guidelines Council) is not always applied consistently and that levels of reductions in some cases appear to be higher than those recommended by the guideline.

Currently, the rules state that the credit is available where a guilty plea is entered ‘at the first reasonable opportunity’. This can mean the first hearing, however for serious matters of health and safety this has also included after the case is committed to the Crown Court. However, under the proposed new rules this will be limited and the maximum one third guilty plea credit will only be available where the guilty plea is entered at the first hearing in the Magistrates’ Court.

How is this likely to affect health and safety cases in light of the new sentencing guidelines? We have previously advised that given the increased levels of fine that companies can expect to receive under the new sentencing guidelines, we expect that many companies may start to defend against health and safety prosecutions more aggressively. This can also include reserving the company’s position while further investigations are carried out and a full consideration of the legal position is undertaken, including whether a defence might be possible, or a narrower basis of plea can be agreed. The proposals contained in this consultation would therefore need to be considered in the ever increasing cost- v benefit analysis in defending health and safety matters.

The size of a company’s turnover and the potential sentence that they may receive under the new sentencing guidelines, will overshadow the maximum third credit off a potential sentence. Pleading guilty at the first hearing may or may not be worthwhile depending on where the company sits within the tables on both turnover, culpability and harm. For example, a large organisation being prosecuted for a medium culpability, harm category 2 health and safety offence would be facing a starting point of a £600,000 fine. By entering a guilty plea at the first hearing, the company may reduce that starting point by a third, to £400,000. However, if the company were to reserve their position and were able to agree with the prosecution a narrower basis of plea and/or reduce the culpability or harm category, then the starting point for the fine could be significantly reduced (e.g. if the harm category could be reduced from 2 to 3, the starting point would be £300,000 instead of £600,000 – a 50% reduction in the level of fine). The company may then also still receive guilty plea credit for pleading further along in the legal process.

Currently, the credit allowed for entering a guilty plea after the first hearing and where a trial date has been set is 25%. The new proposals reduce this figure to 20%, however the guilty plea must still be entered within 14 days of the first hearing. Therefore, as discussed above, if the company are successful in reducing their starting point to £300,000 and then received a further 20% off their sentence under the new proposals, the company might then face a £240,000 fine. In our example, if the company had simply pleaded guilty at the first hearing they would have started at £400,000.

In some corporate manslaughter and health and safety cases, the offence may turn upon crucial witness evidence and given the new fine levels, the company may wish to defend and see how the witness evidence develops at a trial. A guilty plea entered just before a trial is currently set to receive 10% reduction in the level of sentence. The consultation proposes this reduction change to a sliding scale from 0-20%. The 20% reduction will expire following 14 days after the first hearing and it is proposed that a reduction of 0-10% can be applied for a guilty plea entered during the trial. Therefore once a trial has commenced, it is likely that very little benefit would be obtained in pleading guilty under the new proposals.

The consultation adds further complexity to the already changing landscape of how regulatory breaches are prosecuted and defended. If the proposals are brought in, both companies and legal practitioners will be required to place increasing focus on when to plead guilty, if the offender is planning to do so, and the cost benefit analysis of the timing of this.