On the 11 February 2016, the Sentencing Council announced a consultation exercise that is aimed at producing a new Definitive Guideline for Courts to use when sentencing offenders pleading guilty.
The new proposed guideline will aim to set out “a clearer, fairer and more consistent approach to managing guilty pleas, that will incentivise offenders to admit their guilt as early as possible in the Court process”. It is intended that any new guideline will apply equally in the Magistrates’ Court and the Crown Court.
Reducing offenders’ sentences where guilt is admitted is not, by itself, a new idea. In 2007, the Sentencing Council issued guidance on the issue, with offenders receiving a discount of one third where they plead guilty at the “first reasonable opportunity”. The credit available for pleading guilty diminishes the closer to trial a guilty plea is entered, from 25% once the “first reasonable opportunity” has passed, down to 10% when a plea is entered on the day of trial.
Under the new proposals, the maximum one-third discount will only be awarded where an offender pleads guilty at “the first stage of the proceedings”. For adult offenders, and for organisations, this will depend on the nature of offence that is being faced:
The principal difference between the current system and the new proposal is that the “first stage of the proceedings” is tightly defined – it is much narrower than the current “first reasonable opportunity”. Thereafter, the draft Guideline proposes that a reducing sliding scale will be used to determine the appropriate amount of credit to be awarded. It is proposed that, if a guilty plea is entered up to 14 days after the “first stage in the proceedings”, then the appropriate credit discount will be one fifth, decreasing further to a maximum credit of one tenth where a guilty plea is entered on the first day of the trial. The draft guideline also envisages that no credit should be awarded if a guilty plea is entered thereafter.
If the draft guideline is implemented in its current form, then defendants and their advisers will sometimes be faced with an even more difficult decision as to plea. Professional advisers are required to examine the evidence to ensure that appropriate pleas are entered. However, there will be cases where this will be difficult at the “first stage of the proceedings”. Occasionally, it is not appropriate for guilty pleas to be entered only where advisers are given a snapshot, or summary of the evidence. It may be that a potential defence will need to be explored before the issue of plea can be determined fully. This is a potential area for future tension.
A further issue to consider is the effect of the new proposals on organisations, where fines can be based on turnover. We have recently seen the introduction of a new Definitive Guideline on, amongst other matters, Health and Safety and Corporate Manslaughter offences (see our earlier article here: http://www.hughjames.com/news/comment/2016/02/new-sentencing-guideline-for-health-and-safety-corporate-manslaughter-and-food-safety-and-hygiene-offences-effective-today/#.Vr29HYfcu70), which, when coupled with the introduction of unlimited fines in the Magistrates’ Court for offences committed on or after the 12 March 2015, means that any loss of credit can result in a significantly higher penalty. If the new proposals are implemented, those facing criminal investigations and prosecutions will need to ensure that they obtain legal advice and representation at the very outset, if they are to avail themselves of the more limited availability of maximum credit for a guilty plea.
The proposals are currently open for consultation until the 5th May 2016, and can be viewed on the Sentencing Council website: http://www.sentencingcouncil.org.uk/publications/item/reduction-in-sentence-for-a-guilty-plea-guideline-consultation/