A revised definitive guideline on reduction in sentence for a guilty plea now applies in any case where the first hearing is on or after 1 June 2017. This affects anyone over 18 - or any company – facing criminal proceedings in which there has not already been a court hearing.
The aim of the guideline is "to encourage defendants who are going to plead guilty to do so as early in the court process as possible" but it is not intended to be used to put pressure on defendants to do so. Defendants faced with making an immediate choice between pleading guilty without sight of any evidence or losing potential credit may struggle to see the difference.
The maximum level of reduction in sentence remains at one-third but there are significant changes.
The previous guidance recommended a lower reduction for guilty pleas to offences which can be tried in either the Magistrates or Crown Court if the plea was not entered until the Crown Court hearing. The difference, however, was marginal, with the reduction changed from a third to 30%. The importance of the decision at the plea before venue stage is now much greater with the reduction cut to 25% if the plea is not entered until the case reaches the Crown Court.
What is more, the new guideline applies to indictable only offences with the same drop from 33% to 25% if the guilty plea is not 'indicated' in the Magistrates' Court hearing. Appendix 3 to the guideline sets this out with a flowchart showing two options: sending to the Crown Court (where a plea has been indicated) and sending to the Crown Court for trial (where there has been no indication). As a matter of law, an adult defendant charged with an indictable offence can only be sent for trial to the Crown Court. However the new guideline reflects the expectation that guilty pleas will be indicated even at a stage when the court asking for the indication cannot record a plea.
Two of the 'key principles' mark a shift in approach:
- "Factors such as admissions at interview, co-operation with the investigation and demonstrations of remorse should not be taken into account in determining the level of reduction. Rather, they should be considered separately and prior to any guilty plea reduction, as potential mitigating factors."
- "The benefits apply regardless of the strength of the evidence against an offender. The strength of the evidence should not be taken into account when determining the level of reduction."
The second point is in contrast to the previous version which recommended a substantially lower reduction where the prosecution case was overwhelming.
Part F sets out exceptions under which greater credit may be preserved. Of those, F1 is the most notable, particularly given the variable quality of the Initial Details of the Prosecution Case. The key part say that "sentencers should distinguish between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal".
F2 suggests halving the recommended reduction if a Newton hearing is required to resolve the factual basis for sentence, or allowing less than half of the normal reduction if witnesses have to give evidence in such a hearing.
F3 revises and clarifies the position where a defendant is "convicted of a lesser offence" and includes specific guidance for cases "in the Crown Court where the offered plea is a permissible alternative on the indictment as charged". Under the new guidance "the offender will not be treated as having made an unequivocal indication unless the offender has entered that plea". There is a certain circularity to this. If a defendant enters the plea to a separate alternative on the indictment then it is a guilty plea and should always be dealt with as such. If there is no alternative count and the defendant pleads not guilty to the indicted offence, but guilty to a lesser offence, under the provisions in section 6 of the Criminal Law Act 1967, then that plea, if not accepted, is treated as withdrawn and becomes a nullity. The defence will need to remind the court that the plea was 'entered' even though it was then treated as withdrawn.
The new rules undoubtedly require greater focus on the decisions that need to be made at each stage of the case, and in particular at the first hearing.
Limiting the credit at the later stages of the case may have unintended consequences. There may be more cases in which the incentive to plead guilty becomes so marginal that the defendant might as well go to trial.