The new Guideline will apply to all cases where the first court hearing takes place on or after 1 June 2017.
As expected, the Guideline narrows the previous situations in which defendants pleading guilty early in the court process will receive the maximum one third reduction against their sentence, and proposes a less generous scale of reductions for those pleading guilty later. The Sentencing Council’s stated logic is that this will encourage more defendants who are going to plead anyway to do so earlier in the process, which will have benefits to victims and witnesses as well as producing monetary and resource savings for the prosecuting authorities and courts.
Crucially however, the new Guideline does also take account of consultation submissions made by Kennedys and other health & safety and environment (HS&E) regulatory defence lawyers, effectively safeguarding defendants’ interests in regulatory cases.
In summary:
- Previously in “either way” prosecutions, i.e. those including HS&E cases which begin in the Magistrates’ Court but can then be dealt with and concluded in the Magistrates’ Court or the Crown Court, defendants who for legitimate reasons were not ready to plead guilty in time for the first hearing in Magistrates’ Court could still expect to benefit from a full one third credit if they went on to plead guilty at the next hearing, often in the Crown Court.
- The draft Guideline proposed for consultation by the Sentencing Council did away with this leeway in favour of a one-size-fits-all rule mandating that those who failed to plead guilty at the first hearing in the Magistrates’ Court would automatically lose some of their credit. If they went on to plead guilty within the next 14 days credit would be reduced to one fifth, but it would then slide to a maximum of one tenth if a plea was entered on the first day of trial.
- Kennedys’ core submission to the Sentencing Council was that sufficient flexibility should be retained in the Guideline to ensure defendants involved in regulatory prosecutions were not disadvantaged. The draft Guideline would have had the effect of penalising defendants in regulatory cases simply for wishing to take reasonable time to consider and take advice on how to plead. Or worse still of unfairly bumping them into a hasty decision on plea before they had done so.
- It is typical in these cases, which can take years for the authorities to investigate and are very often complex and technical, for defendants to be given as little as two weeks’ notice of the first hearing in the Magistrates' Court, and for several lever arch files of dense prosecution evidence to be served on them and their lawyers at the same time, or even later. In addition, health and safety prosecutions involving corporate defendants require them and their lawyers to consider and investigate reverse burden issues, i.e. whether they can prove that they did all that was reasonably practicable. In the circumstances, Kennedys submitted to the Sentencing Council, any new Guideline must allow these defendants to take reasonable time to understand and consider their position, rather than punishing them for doing so.
- Sensibly, the new Guideline now accepts that a full reduction of one third may be appropriate where there are particular circumstances which significantly reduce the defendant’s ability to understand what is alleged or otherwise make it unreasonable to expect the defendant to indicate a guilty plea at the first hearing in the Magistrates’ Court.
Comment
So, while the new Guideline represents a tightening of the rules regarding the degree of credit to be given to defendants who plead guilty in regulatory cases, and while it is increasingly important for those defendants to be represented by specialist lawyers who understand and can argue their position forcefully at all stages of the court process, the prospect of automatic penalisation of defendants who take a reasonable time to obtain advice on the very significant question of whether to plead guilty or not guilty has been avoided.
