The Sentencing Council for England and Wales is consulting on proposed changes to rules governing sentence reductions for early guilty pleas (“EGP”s). If brought in, the proposed changes would be more burdensome for defendants than is currently the case. Under existing practice if a guilty plea is made at the “first reasonable opportunity” the discount is up to one third. In light of the recent trend of significantly increasing fines in some areas (for instance environment, and health & safety) any such changes to the EGP rules could have a significant financial impact.
The proposed tightening by the Sentencing Council of the availability of the reduction for EGPs (from the first reasonable opportunity to the “first stage of proceedings”) and the steeper drop in percentage reduction over time, will mean that defendant corporates facing prosecution would have to consider very early on whether and when to indicate a guilty plea.
Current guidelines on EGPs
Under current guidelines, a discount on the level of fine is available where a defendant indicates or enters an EGP at the first reasonable opportunity. The recommended discount is one third. The Sentencing Council is concerned that the existing guidelines are not clear enough on when this opportunity arises and is otherwise concerned that the rules around EGPs are not being applied consistently (with occasions when discounts are less or more than one third). Therefore the Council has produced a revised draft guideline. In this it has also proposed five limited exceptions where up to a one third reduction may still be applied at later stages in proceedings. The key changes which may have implications for corporate defendants, are summarised below.
The Sentencing Council hopes that the draft guideline, if introduced, will encourage corporate defendants who recognise their guilt to plead early. This would have the benefit of sparing victims and witnesses from testifying and allow the prosecution and courts to redirect their resources to contested cases.
Importantly, if introduced, the changes proposed in the draft guideline will apply regardless of the date of the offence.
Proposed key changes
Importantly, five possible exceptions are proposed which may still allow offenders to claim up to the one third discount for guilty pleas entered/indicated later than the new default first stage of proceedings:
1. Further information or advice necessary before indicating plea
This exception will only be available where all three of the following conditions are satisfied:
i) Before the first stage of proceedings, the offender identified to the court/prosecutor the conduct which is admitted;
ii) insufficient information was available about the allegations to know whether an offender was guilty of the offence or not; and
iii) it was necessary for the offender to receive advice and/or see evidence to decide whether to plead guilty or not.
The Sentencing Council is clear that this exception shall not allow defendants to say nothing and receive the maximum reduction – i.e. they must admit the conduct – and it should only apply where the offender genuinely does not know whether or not he is guilty. The Council is therefore clear that this exception should apply only in rare cases. However, it may be very relevant where proceedings and subject matter are expected to be complex, and where matters of law (possibly requiring expert evidence) need to be determined at preparatory and other pre-trial hearings before a full assessment can be made to determine plea.
2. Initial details of the prosecution case (IDPC) not served before the first hearing
It should be considered carefully whether the prosecution has fully discharged its duty. Where there is doubt this should be raised very promptly. Once the IDPC has been served, the offender has only an additional 14 days grace in which to indicate plea.
3. Newton Hearings (and special reasons hearings)
Where an offender’s version of events is upheld at such hearing, then there should be no loss of EGP reduction. However, if the offender’s version of events is rejected at a Newton Hearing then the reduction which would otherwise have been available for an EGP, should normally be halved. There may be further decreases if witnesses have been called (which will often be the case).
4. Exceptionally complex and time consuming cases in the Crown Court
The draft Guideline proposes that “complex and time consuming” cases will be those cases where it was likely the case would have involved very substantial amounts of court time (“many months”) and/or number of witnesses (“dozens”) giving evidence. This exception is potentially highly relevant to cases where the law and technical material is complex and voluminous, and additionally, the area of law relatively unfamiliar – this is often the case with complex environment and health & safety offences (the Council also gives the example of a complex fraud trial). However, the Council considers that this exception will apply only rarely.
5. Offender convicted of a lesser or different offence
This exception is provided to avoid an offender being unfairly prejudiced where the prosecution changes the charge. However it will be available only where the offender made an unequivocal indication of a guilty plea to the relevant lesser/different offence.
The Sentencing Council states that nothing in the guideline should create pressure on defendants to plead guilty. However the draft guideline does rather stack the cards against defendants; in capping the discount available, stipulating a particular (early) stage when this can apply, introducing a steeper sliding scale and providing exceptions which will largely only be applicable in “rare” cases.
Given the often extremely complex legal issues and technical nature of the evidence required in regulatory prosecutions (including environment, health & safety, and white collar crime/fraud regimes), corporates facing prosecution under these regimes may wish to consider carefully the impact of the proposed changes.
The trend in fines appears very much to be on an upward trajectory, the reduction of up to a third is a significant factor. This is particularly so in light of other recent changes such as the removal of maximum fines in Magistrates Courts and the very limited possibility for costs recovery for successful or acquitted corporate defendants.
The consultation closes on 5 May 2016.
The consultation document is available here
For our earlier overview articles on the new Sentencing Guidelines for Environment offences see here
And here and for Health & Safety see here