Practical Law

On 11 February 2016 the Sentencing Council issued new draft guidelines concerning the reduction that should be applied to a sentence after a guilty plea. The new guideline is broadly designed to provide an incentive to defendants who are going to plead guilty to do so as early as possible in the court process, without creating any unfair pressure on innocent people to plead guilty. Early pleas of guilty are of course of considerable benefit to investigatory and prosecution authorities.

The new guidelines are designed to replace the existing guidance first published in July 2007 (For more information on the current position, see Practice note, Sentencing in the Crown Court). The draft guidelines propose three broad changes to the existing system:

• The point at which an offender can benefit from the maximum (one-third) reduction will be more tightly defined. To qualify, they must plead guilty at the first stage of proceedings, defined as the first time they are asked for their plea in court. In contrast, the existing guideline requires the offender to plead guilty at the first reasonable opportunity, which is open to judicial interpretation and provides greater flexibility.

• For offenders who plead guilty after that first stage, the maximum reduction they can be given will be one-fifth, rather than one-quarter as under the current guideline. Offenders who plead guilty later will consequently serve longer sentences than those who plead guilty at an early stage.

• The draft guideline proposes that the maximum reduction in sentence for a guilty plea should be applied regardless of the strength of the prosecution case. This is a departure from the current guideline, which states that the full reduction may not be appropriate if the prosecution’s case is overwhelming.

The draft guidelines set down two exceptions to the general rule:

• Where a defendant admits what they have done, but needs either legal advice or access to evidence to determine whether a criminal offence has been committed.

• Circumstances where the initial details of the prosecution case have not been served before the first hearing in either-way and indictable only cases.

A number of responses to the consultation were received. The London Criminal Courts Solicitor’s Association (LCCSA) raised concerns about the difficulties caused by either late or incomplete service of materials by the CPS, making it impossible to adequately advise a client on their plea, and risking an adverse effect. The LCCSA deemed the comment “the defendant must know whether he has done it” inappropriate, as it overlooks both the role of solicitors in advising clients and that it is for the prosecution to prove their case.

Similarly, although accepting the benefits of greater certainty and consistency, the Law Society recognised the need for flexibility to accommodate circumstances where prosecution material has not been presented in a timely manner.

The House of Commons Justice Committee has published a session report on the consultation, broadly supportive of the proposals, but raising concerns on the impact on the prison system and the pressures that might be applied to individuals to plead guilty. Importantly for business crime practitioners, the committee proposed a third exception to the general rule, in respect of corporate defendants who may need to conduct detailed investigations before deciding how to plead. For more information on the session report, see Legal update, House of Commons Justice Committee publishes session report on reduction in sentence for a guilty plea guideline

The guidelines are designed to deal with the very difficult balance of trying to provide an incentive for individuals who are guilty to enter a guilty plea at the earliest opportunity, with the need to prevent those who are not guilty feeling pressured to enter a plea. This is an obvious problem for “US-style” sentencing, where the difference between a plea and being found guilty can be measured in multiples.

There must be a concern that the removal of a discount, or significant discount late in the proceedings will ultimately lead to fewer people pleading guilty, after reaching the point in proceedings where there is nothing to be gained. In such circumstances, the use of Newton hearings are likely to be more important. For more information see Practice note, Newton hearings.

It is also vital that nothing in the guidelines should in any way “pressure” a defendant into pleading guilty, which would be a clear breach of an individual’s rights under article 6 of the ECHR. The best way of dealing with this is to extend the second option to all cases, permitting any individual charged to seek legal advice before entering a plea if they have been unable to do so before the first stage of proceedings, and to ensure it is properly enforced by the courts. This does of course raise the long standing issue of Crown Prosecution Service resources and funding.

A most welcome aspect will be the removal of the notion of “overwhelming” when considering the strength of the prosecution case. This is a very subjective term and is almost indeterminable in business crime cases.

The new draft guidelines should therefore be given a cautious welcome, but the overriding priority must be to ensure justice is done, rather than expediency. Steps must be taken to ensure that all those charged with criminal offences are not penalised before they are in a position to enter a properly informed plea.