Entering a guilty plea - if it needs to be done, do it early?

Wednesday, 15th February 2017

The standard reduction in sentence afforded for a guilty plea is undergoing review with some potentially dramatic results. Presently, it is possible to reduce sentences by a third by entering a guilty plea at "the first reasonable opportunity". After the "first reasonable opportunity", that credit will slowly deteriorate as the case progresses.

New guidelines propose that this maximum award should only be applied to pleas entered into "at the first stage of proceedings". Essentially this means that a defendant would need to enter a guilty plea at their first hearing and that the safeguard of "reasonableness" may be lost.

In addition, the Sentencing Guidelines Council ("SGC") has suggested a drop in the sentence discount available after this first stage to 20%, compared to the current 25%. The loss of credit will therefore come both more quickly, and more severely.

Context

This stricter system may persuade more defendants to plead guilty earlier in the court process. The existing system has faced criticism in that it allows defendants to delay their plea until they can assess the strength of the evidence put forward by the prosecution.

Sentencing Council chair Lord Justice Treacy said: “We want those who have committed crimes to admit their guilt as early as possible. When they do, it means victims and witnesses can be reassured that the offender has accepted responsibility for what they have done and that they are spared having to appear at court to testify. It also means that the police and Crown Prosecution Service can use their resources more efficiently to investigate and prosecute other cases."

However, concerns have been voiced as this reasoning assumes that the case has reached a sufficient stage by the time the now critical first hearing occurs. In practice, it is rare that prosecutors are able to serve a case this early and the “initial details of the prosecution case” served are often insufficient to evaluate the strength of the case (or be properly advised on it). This is even more likely to occur in a regulatory context because facts will often be complex, technical and require a degree of investigation before proper advice can be sought or given.

The SGC proposes some exemptions. Of particular relevance is the following:

Where all three of the following apply:

  • At or before the first stage of the proceedings the offender – although he has not indicated a guilty plea – has identified to the court and/or the prosecutor the conduct which he admits; and
  • The offender had insufficient information about the allegations to know whether he was guilty of the offence; and
  •  It was necessary for him to receive advice and/or to see evidence in order for him to decide whether he should plead guilty;

A reduction of one-third should be made where the guilty plea is indicated immediately after he receives the advice and/or sees the evidence.

For the avoidance of doubt this exception does not apply where an offender has exercised his right not to admit what he knows he has done until he sees the strength of the evidence against him.”

This exception is a welcome recognition that in more complex cases it is not simple to “know” whether or not you are guilty. Complicated technical or financial crimes (for example) will often require a detailed understanding of the evidence which the prosecution allege demonstrates an offence. Secondly, specialist and expert advice may be needed as to whether the defendant's conduct (or omission) amounts to an actual offence.

However, this exception will not alleviate the situation of defendants in more straightforward cases whose lawyers are not in a position to advise them on the strength of the evidence at the first stage in proceedings. Defendants will increasingly be placed in the unenviable position of feeling pressure to plead guilty without knowing whether the prosecution evidence is close to sufficient to prove them guilty. It is hard to see how this is not an erosion of the principle that the prosecution must prove its case, which the draft guideline claims to uphold.

In addition, this and the other exemptions are very narrowly drafted. If these are all brought into force, the need for expert advice at an early stage of proceedings would be even more crucial. Defendants would need representation who can predict which exceptions might be available so as to ensure any delay in entering a guilty plea does not deprive them of a reduction in sentence to which they would otherwise be entitled.

Comment

The aims of the draft guideline are commendable for their attempt to promote greater consistency in sentencing practice. However, it is just as important that the rights of defendants, and especially the right to remain "innocent until proven guilty", are safeguarded.

The proposed guidance and narrowly drafted exceptions may prioritise cost saving and uniformity at the expense of defendants, and result in an overly commercial approach to entering a plea. The SGC reminds us that “defendants have a clear right to require the state to prove the case against them to a criminal standard”, however it is doubtful whether the detail of the draft guideline will protect these principles.

This guidance has not yet come into force and may be changed before it becomes effective. Directors, senior managers and in-house legal counsel should watch this space, and will have another incentive to investigate and defend early if a regulator has cause for concern.

If you have any queries or concerns with regard to corporate criminal liability, please contact a member of our Business Risk and Regulation Team.

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