The criminal courts have long provided an incentive to defendants, in the form of a substantial reduction in sentence, to plead guilty at an early stage in proceedings.

With penalties for regulatory offences now regularly into the seven (and even eight) figures, a 25 or 33% discount could constitute a major saving, but the window for defendants in proceedings to grab their all-important maximum discount may not be open long, given more robust case management by courts at the first hearing and short timescales given by prosecutors to prepare any basis of plea.

Now the Sentencing Council has published a Definitive Guideline on Reduction in Sentence for a Guilty Plea, which sets out the approach a court will take in much greater detail, so the clock will increasingly tick (and the available reduction lower accordingly) from the very first hearing.

Prosecutions that the Guideline will apply to

The Guideline applies to all matters which come before the criminal courts where the first hearing in a criminal court is on or after 1 June 2017, including to all prosecutions by agencies such as the Health and Safety Executive, the Environment Agency and Local Authorities.

Experience shows that courts will take a published Guideline into account before it formally comes into force, meaning individuals and organisations facing prosecutions which are already underway can expect the new principles to be considered in their cases.

Reduction in sentence that will be applied - First stage of proceedings

The Guideline provides for a maximum reduction of one-third. The full discount will be applied where a guilty plea is indicated at the 'first stage of proceedings', normally the first hearing at which a plea or indication of plea is sought and recorded by the court.

The court will almost invariably ask for a plea or indication of plea on the very first occasion that a matter is before the court. If legal advice is to be sought, it should be sought as far in advance of the first hearing as possible, to ensure there is time for a full exploration of the issues (including the factual context which could determine those all-important categories of harm and culpability). It is often the case that an investigation which has taken years to conclude will require a defendant to consider the evidence against it in a period of only weeks. In our experience, the full evidence required to make serious decisions in complex cases is rarely available in advance of (or even by) the first hearing.

Reduction in sentence that will be applied - After the first stage of proceedings

The Guideline provides for a maximum discount of one-quarter where a guilty plea is indicated after the first stage of proceedings, reducing on a sliding scale thereafter. Where a guilty plea is indicated or entered on the first day of trial, the maximum discount is further reduced to one-tenth (and may reduce to zero where a plea is entered during trial - for example at the end of the prosecution's case) - this is clearly designed to motivate those who wish to plead guilty to do so at the very earliest stage.

Reduction in sentence that will be applied - where there is a Newton hearing

Where the prosecution puts forward one version of events and the defendant wishes to plead guilty but asserts a different version of events, the court may hear evidence to determine any factual disputes in what is called a 'Newton hearing'. Newton hearings may become increasingly common in regulatory cases going forward, where sentencing guidelines require the court to make clear determinations about levels of culpability and harm which directly and dramatically impact on the level of sentence to be imposed, especially if a plea has been entered, but a key factor in determining category (and therefore penalty) for sentence cannot be agreed on the facts.

Under the Guideline there is a real risk of jeopardising discount for a guilty plea by seeking a Newton hearing. If, after a Newton hearing, the court finds in favour of the prosecution, the reduction to be applied is halved: clearly, a very detailed financial analysis needs to be taken between the benefit to be achieved by winning an argument (in terms of category reduction) against the negative impact to be achieved by having a 33% reduction halved, if a defendant loses.

Practical considerations

  • Procedure and timing is all on the side of the prosecutor. You need to be prepared.
  • Reductions in sentence, particularly for higher fines, can be significant. The emphasis must be on considering the prosecution case at the earliest possible stage, and ensuring that an informed decision about plea can be made at or before the first hearing.
  • There may be very little time to prepare factual challenges or mitigation if the facts are accepted - do not wait to seek advice until a summons lands: if you have had a serious regulatory breach which is investigated (even amicably) by a regulator, legal advice should be sought early in proceedings, so that you can be prepared for the worst (and be relieved if that does not come to pass).
  • Newton hearings should be avoided where possible, by early identification of evidence undermining the prosecution's version of events or supporting the defence version - non-legal expert evidence may be required to make that point convincingly, especially with more committed prosecutors. Meaningful negotiations with the prosecution can then be entered in to, so that disputes can be resolved outside the courtroom.