Early guilty pleas: as simple as it seems?

Early guilty pleas are advantageous for a number of reasons. They can remove cases at an early stage, so that they do not block the system and affect timetabling, free up resources for the police and the Crown Prosecution Service to investigate and prosecute other cases, and also reduce the impact of crime on victims and witnesses, by avoiding the stressful experience of going to trial.

For these reasons, the CPS has, until now, offered defendants the ability to reduce their sentences by up to one-third if they plead guilty at the ‘first reasonable opportunity’ – a definition which has been open to interpretation by judges. However, after 1 June 2017, there will be more clarity. To receive the one-third reduction, defendants will have to plead guilty the first time they are asked for their plea in court, with a sliding scale of sentence reductions thereafter. These are as follows:

• One-quarter: the maximum available for pleading guilty at a later opportunity but before the first day of the trial;

• One-tenth: the maximum for anyone who changes to a guilty plea on day one of their trial (a trial is deemed to have started when pre-recorded cross-examination has begun); and

• Zero: for any offender who waits until part-way through a trial to plead guilty.

There will be one exception where defendants can still receive the one-third discount at a later stage. This will be if the sentencing court is satisfied that there were particular circumstances which significantly reduced the defendant’s ability to understand what was alleged, or otherwise made it unreasonable for the defendant to indicate a guilty plea sooner.

The pleas will also apply to Newton hearings – where a defendant pleads guilty but disputes the case put forward by the prosecution and the outcome of the dispute would make a difference to the sentencing. In these hearings, the judge will normally hear evidence from witnesses to decide which version of the disputed facts to base the sentence on. These are fairly common in health and safety prosecutions. The sentencing guideline states that where a defendant’s version of events is rejected at a Newton hearing, the reduction which would otherwise have been available for the plea made at the time it was made should normally be halved. Where witnesses are called, it may be appropriate to decrease the reduction further.

These changes are designed to provide less scope for guilty offenders to ‘play the system’ and still receive the maximum discount. Ultimately, encouraging early guilty pleas should also save a significant amount of public money. But will this work in all cases?

It is easy to understand that in a simple case of ‘whodunnit’, for example a road traffic accident or a physical assault between two parties, this will act as an incentive for the offender to own up ‘sooner rather than later’. However, things may not be so easy when it comes to regulatory or health and safety incidents. In many cases involving multiple parties, there are likely to be significant hurdles to establishing culpability. Some possible situations include:

• An incident occurs, despite having carried out industry-wide health and safety procedures: company directors and solicitors might need further time to establish who will need to be questioned;

• An incident of a safety breach requires complex technical or factual information or expert evidence to be obtained because HSE allegations do not make it obvious whether or not a guilty plea should be entered straight away; and

• The first appearance in court often comes years after events but too soon for an informed decision as to the plea to be made: often, particularly when insurance claims are involved, solicitors may have only recently been instructed, documentation may amount to thousands of documents for review, and/or the director or individual concerned who had knowledge is not immediately available.

Ultimately, flexibility is vital and a balance needs to be struck between the interests of the public, victims, and the rights of defendants to fair judicial process. Guidelines should also not prevent judges from making an appropriate decision in individual cases.

The guidance does state that there should be a distinction between cases where it should be obvious that advice or evidence will be required to establish culpability and those where a defendant puts off admitting guilt in order to assess the strength of evidence and the prospects of successfully defending the prosecution. It will remain to be seen, however, whether or not the courts are able to consider such challenges for defendants in a fair and consistent manner when it comes to sentencing.

Kirsty Finlayson is a trainee solicitor at Weightmans

@Weightmans

www.weightmans.com