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New Sentencing Guidelines - update

18/01/2017

It has long been recognised within the English criminal justice system that where a defendant enters a guilty plea prior to trial, early acceptance of responsibility will be reflected in credit against the sentence imposed.

Although a defendant is entitled to put the prosecution to proof, credit is offered as an incentive on the basis that it saves both court time and money, and also avoids the need for victims and witnesses having to attend court to testify.

This is enshrined in section 144(1) Criminal Justice Act 2003 which states:

“…in determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that court or another court, a court must take into account:

a.    The stage in the proceedings for the offence at which the offender indicated his intention to plead guilty; and

b.    The circumstances in which this indication was given.”

Guidelines issued in 2007 by the Sentencing Guidelines Council confirm the previously accepted rule of thumb that the greatest reduction (usually one-third) is to be applied where the plea is indicated at the, “first reasonable opportunity.” The Guidelines go on to suggest that the level of reduction should thereafter be assessed on a sliding scale, reducing to a recommended one-quarter following the setting of a trial date, to a recommended one-tenth ‘at the door of the court.’

However new draft Guidelines have been issued which, if implemented, would serve to reduce the amount of credit available. Whilst the maximum credit available remains at one-third, this is only available if guilt is indicated at or before the ‘first stage of the proceedings’. The proposed Guidelines suggest that for either way offences (which the majority of health and safety offences are) the first stage of the proceedings extends up to and includes the allocation hearing in the magistrates’ court, usually being the first appearance before the court. For any pleas entered after the first stage of proceedings, the maximum credit suggested is one-fifth, reducing to a maximum of one-tenth on the first day of trial, proportionate to the time when the guilty plea is first indicated relative to the progress of the case and trial date.

If implemented, the new Guidelines will apply to all cases, regardless of the date of the offence.
In many health and safety prosecutions, a summons may be received by a defendant which lists a return date within a matter of weeks of receipt of the summons. Combined with the fact that there may have been no previous indication that a prosecution would be initiated, this creates enormous pressure for the defendant to consider the evidence against it and finalise its position before the initial appearance, or else risk losing the maximum credit. This is compounded by the significant increase in fines for health and safety offences which were introduced by new Sentencing Guidelines for these offences in February 2016.

In many instances however it is not possible for a defendant (either corporate or an individual) to know by the date of the first appearance before the court whether they are guilty of an offence, such issues often requiring extensive expert evidence or detailed factual enquiries.  Although tried in the criminal courts, health and safety offences differ from more orthodox criminal offences in that findings of guilt are usually less clear cut, being based on the creation and appreciation of risk, rather than a single clearly defined act.

Possible implications of the Guidelines, should they become effective, may therefore include the front loading of preparatory work, the earlier instruction of experts and earlier ‘final’ decisions as to whether to defend to trial or consider a compromise.

There are exceptions to the above sentencing process, including where further information is necessary before a plea can be indicated (but only in instances where the defendant has identified to the court / prosecutor the conduct which is admitted). This is only if the plea is indicated immediately after the additional information is received. There are also exceptions which apply where details of the prosecution case are not served in advance of the initial appearance, or in respect of particularly complex or time-consuming cases in the Crown Court. It is likely therefore that defendants in receipt of a summons for a health and safety offence may seek to avail themselves of one of the above exceptions - but as the Guidelines are still only in draft it is not clear, should they be implemented, how generous the courts will be in their application.

Author

Heather Vyse

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