Restricting or Revisiting the Issue of Credit for Pleading Guilty?

Tue 1st Jun 2021

What level of credit are you going to submit the Defendant is entitled to for his guilty pleas in the following scenario?

The Defendant and four co-Defendants were all jointly charged with one offence of supplying a controlled drug of Class A and one offence of possession of a controlled drug of Class A with intent. Due to the formative stage of the proceedings, the Defence advocate representing the Defendant at the first Court hearing in the Magistrates’ Court was unaware of the full extent of the offending alleged, including the ‘role’ of the Defendant within the hierarchy and the quantity of drugs supplied. Accordingly, the Better Case Management form was endorsed on behalf of the Defendant with the words “likely guilty plea”, however, the Defendant did not enter any guilty pleas in the Magistrates’ Court. The Defendant subsequently pleaded guilty to both offences at the plea and trial preparation hearing.

Are you going to accept that credit is limited to one-quarter? Or does this case fall within one of the exceptions identified within the Sentencing Council’s definitive guideline ‘Reduction in Sentence for a Guilty Plea’?

Our starting point is the Sentencing Council guideline at paragraph F1 which provides that where the sentencing Court is satisfied that there were particular circumstances which significantly reduced the Defendant’s ability to understand what was alleged or otherwise made it unreasonable to expect the Defendant to indicate a guilty plea sooner than was done, a reduction of one-third should still be made.

Did the absence of adequate disclosure as to the alleged role of the Defendant in our scenario make it unreasonable to expect the Defendant to indicate a guilty plea at the first Court hearing in the Magistrates’ Court? In circumstances where neither the duration of the offending nor the quantity of drugs supplied are known, is it reasonable to expect a Defendant to enter an unequivocal guilty plea at the first Court hearing?

In the recent judgment of Regina -v- Plaku and Others [2021] EWCA Crim 568 the Court of Appeal considered the Sentencing Council’s guideline and the application of paragraph F1. Holroyde LJ referred to the “classic example” of a Defendant who knew whether or not they were guilty. Specifically, at paragraph 41, it was held that:

“This is in our view a classic example of a case in which the Appellants knew that they had been involved in drug dealing, knew or could readily have been advised that they were in fact and law guilty of conspiracy to supply controlled drugs and therefore could not bring themselves within exception F1. Issues as to the duration of the conspiracy or as to the precise roles played did not prevent an indication of guilty plea being given at the first hearing in the Magistrates’ Court.”

But what about a case in which the Defendant delays entering a guilty plea pending the receipt of a Defence expert report?

The Sentencing Council guideline at paragraph F1 does draw a distinction between cases in which it is necessary to receive advice and/or have sight of evidence in order to understand whether the Defendant is in fact and law guilty of the offence charged and cases in which a Defendant merely delays entering a guilty plea in order to assess the strength of the Prosecution evidence and the prospects of conviction or acquittal.

The case of Regina -v- Dixon [2021] EWCA Crim 797was decided after Plaku and Others. In Dixon the Defendant was charged with 15 offences in connection with the importation, conversion and sale of firearms, together with the making and possession of explosive substances; there were also a number of forgery offences. The Defendant entered two guilty pleas at the plea and trial preparation on the 16th December 2019 and a trial for the other 13 offences was listed on the 23rd March 2020. On the 10th March 2020 the Defence notified the Prosecution that the Defendant now intended to plead guilty to the remaining offences and at a Court hearing on the 23rd March 2020 those guilty pleas were entered.

At the sentence hearing in Dixon the Defence successfully argued that this case fell within paragraph F1 and that the Defendant was entitled to a discount of 20%. The sentencing Judge accepted the Defence submission that the Defendant had been entitled to wait for the Defence expert report to be received which dealt with the classification of the firearms before entering his guilty pleas.

However, the Court of Appeal concluded that the sentencing Judge had erred and the appropriate discount was one of only 15%. At paragraph 68 and paragraph 69 Thirlwall LJ accepted that whilst the Defendant was fully entitled to wait for the Defence report, the consequence of doing so was a measurable loss of credit. It was held that:

The Prosecution obtained evidence as to classification. It was several months before the Defence report was produced for reasons connected to the pandemic … but the reality is that the Respondent knew the classification of the firearms. He was buying and selling them. He had the Prosecution report which confirmed what he knew. He was entitled to wait for the result of his investigation to decide how to plead but on a proper application we cannot accept that he was entitled to a reduction in the sentence of 20%.”

Finally, you may be considering whether the endorsement on the Better Case Management hearing form of a “likely guilty plea” in the above scenario could be used to support an application that the Defendant is entitled to full credit for his guilty pleas.

The Sentencing Act 2020, s.73 focuses upon the time when a guilty plea is indicated not when it was entered. However, the indication must be unequivocal. In Plaku and Others at paragraph 17 the Court of Appeal dealt directly and decisively with this issue:

“In a number of cases in recent years this Court has made clear that for the purposes of determining the appropriate reduction in sentence, an indication of a guilty plea must be an unequivocal indication. An indication of a “likely” or a “probable” plea is not enough as by definition such an indication keeps open the possibility of a not guilty plea and thus negates the advantages referred to in the key principles section of the guideline.”

Even an indication on the Better Management Hearing form of “likely to be guilty pleas on a basis” has been held to be insufficient to entitle the Defendant to full credit (Regina -v- Davids [2019] EWCA Crim 553). Such an indication was held to be “keeping options open” both as to whether a guilty plea would be offered and the basis upon which it was offered.

In conclusion, whether you consider that the Court of Appeal in Plaku and Others and Dixon has revisited and/or restricted the issue of credit for pleading guilty it is now crystal clear in which way the appellate wind is blowing in this context. Whilst the Court of Appeal in Plaku and Others did recognise the “undesirability of ever saying never” the cases in which a guilty plea entered or indicated after the first Court hearing should be treated as tantamount to a guilty plea at the first stage of the proceedings “will be rare”.

Emma Downing
31st May 2021

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