Credit for a guilty plea – is it now or never?

The recent criminal case of Plaku and others v The Queen [23.04.21] has refocused judges’ minds on when it is appropriate to award a discount of an offender’s sentence and how much of a discount should be applied. It is noted by this case that over time, practices have started to develop whereby different levels of discounts are applied at different stages and Plaku refers sentencing judges back to the original guidelines to reintroduce consistency.

Discounts to sentences are offered in order to encourage those who are going to plead guilty to do so as early on in the court process as possible. The aim being to reduce the impact of crime upon victims, save victims and witnesses from having to testify at trial and save public time and money.

Receiving credit for a guilty plea to a health and safety offence can be significant given the level of fines that can be handed down. As such, it is important for clients to receive timely legal advice on the potential level of discount that may be available at each stage, the various strategies that may be employed, and the potential risks that may be involved in entering a guilty plea at a later stage. This article examines the potential impact of Plaku and its relevance to the sentencing of health and safety offences.

Background

The case of Plaku was heard by the Court of Appeal in March 2021 and saw three appellants seek a hearing to raise issues as to the correct approach in determining the appropriate reduction in sentence following guilty pleas. All three appellants were given a 25% reduction of their sentence and it was argued that the full one third discount should have been given.

The fourth case considered at the same time was an appeal brought by the Crown on the suggestion that the sentence was unduly lenient because credit of one third was given when it should not have been. None of the four cases involved health and safety offences, but as a criminal appeal judgment, it may be applicable to the sentencing of health and safety offences.

The Court of Appeal made it clear at the outset of its judgment that the court must follow any relevant sentencing guidelines unless it is satisfied that it would be contrary to the interests of justice to do so. It went on to confirm that the Sentencing Council’s definitive guideline on ‘Reduction in sentence for a guilty plea’ (the Guideline) sets out the principles that a court should follow in reducing the punitive aspects of a sentence following a guilty plea.

The steps that the court must take in determining the level of reduction are set out at Section D of the Guideline and are summarised as follows:

• Plea indicated at the first stage of the proceedings – reduction of one third. With the first stage being defined as the first hearing at which a plea or indication of a plea is sought and recorded by the court.
• Plea indicated after the first stage of proceedings – maximum reduction of one quarter.
• The reduction should be decreased from one quarter to a maximum of one tenth on the first day of trial.

The Court of Appeal in Plaku highlighted that where a defendant knows they are guilty in fact and law of an offence and do not come within one of the exceptions contained at Section F of the Guideline (see below), they should enter a clear plea of guilty at the first hearing at which an indication of plea is sought and recorded in order to secure the full discount of one third of the sentence.

Knowing that a defendant is guilty in fact and law of an offence may be more straightforward in ‘general’ criminal cases. However, the same cannot always be said for health and safety cases, which have a reverse burden of proof on defendants to prove that it was not reasonably practicable to do more than was in fact done.

The Section F exception

Section F of the Guideline notes that there may be exceptions, namely when further information, assistance or advice is necessary before the defendant is able to indicate their plea. This was noted in the case of Plaku as being particularly relevant in the current climate when defendants’ access to legal advice may have been restricted as a result of the COVID-19 pandemic.

In order for a defendant to understand whether a guilty plea should be entered in a health and safety case, it will be necessary for them to consider the reasonable practicability of what was done. This can take time and may include the instruction of experts to examine the efficacy of processes and procedures that were in place at the time.

In these circumstances, it may be that the Section F exception could be argued in order to retain credit for the guilty plea once it is entered, even if that is much later than the first occasion.

The Guideline provides that when there are particular circumstances which significantly reduce the defendant’s ability to understand what was alleged, or make it unreasonable to expect the defendant to indicate a guilty plea sooner than was done, a reduction of one third should still be made.

The Guideline also considers circumstances in which a defendant may not know that they are guilty in fact and law of an offence until after a Newton Hearing (which is a ‘mini-trial’ used to determine discrete issues). This could arise when two witnesses have differing accounts of what occurred and it is necessary for a judgment to be made on the conflicting evidence at a hearing. In these situations, the Guideline suggests (Section F2) that if the defendant’s version of events is rejected at a Newton Hearing, the reduction which would have been available at the stage of proceedings the plea was indicated should be halved. Where witnesses have to attend the Newton Hearing, it may be appropriate to decrease the reduction further.

Comment

Ultimately the Court of Appeal ruled in Plaku that all three appeals brought against the Crown failed. The Court agreed that the reduction of one third in the fourth case was wrong in principle as the full discount was applied despite the defendant suggesting that he was ‘likely’ to plead guilty at the first hearing, as opposed to giving an unequivocal indication.

The case of Plaku has made it clear that sentencing judges may not depart from the Guidelines in offering discounts for guilty pleas in all criminal cases. However, in many cases, we would argue that given the complex nature of health and safety offences, exemptions under the Guideline might allow credit to be retained given that further information, assistance or advice is necessary before a plea can be indicated unequivocally.

There are various strategies that can be employed in seeking to ensure that credit is retained in so far as is possible. Each case will turn on its own facts, and early legal advice should be sought on the options available and the various strategies that can be employed in order to enhance the chances of being awarded full credit.

Read other items in Health, Safety and Environment Brief - September 2021