A consultation on the reductions given for a guilty plea has been launched with responses due by May. Currently, the law incentivises guilty pleas to reduce the number of unnecessary trials by encouraging pleas at the earliest opportunity. A consultation has been launched to determine whether further clarity is needed over the rules.
The consultation proposes to tighten up the rules about when a guilty plea must be entered to attract the greatest discount, which is one third, and to increase certainty. The existing rule refers to a plea being entered at the first reasonable opportunity, which can be interpreted broadly for serious health and safety cases to potentially include after the first hearing of the case in the Magistrates Court has been heard, and the case has been committed to the Crown Court. If introduced, the new rules will cap the reduction at a maximum of one third and this will only be available up to and including the first hearing in the Magistrates Court.
The drop in discount is also quicker. The current guideline allows a 25% reduction after a trial date has been set, the consultation proposes that this be reduced to 20% and is only available for 14 days after the first hearing.
For a plea at the Court door (i.e. just before trial) the current guideline proposes a 10% reduction, but also allows this to be applied once trial has commenced. The consultation adopts a more sophisticated approach, with a figure of between 20 and 10% being selected based on a sliding scale between the date the 20% reduction expires and the commencement of trial. After that, the consultation allows the figure to drop lower, even to 0, meaning there is unlikely to be any significant discount for a guilty plea during trial.
The aim of the consultation is to increase certainty. However in light of the implications of the new setnencing guidelines on health and safety offences the effecct could be significant for a number of reasons:
- The reduction of the time to plead guilty and obtain the maximum discount means that the window between receiving prosecution papers and first appearance at the Magistrates Court is the only opportunity to negotiate a basis of plea with the prosecution. For large or complex cases this is unlikely to be sufficient. This may lead to more adjournments or to more tactical pleas of not guilty where corporate defendants aim to establish key issues supporting a particular categorisation under the guidelines through expert evidence and hearings of specific issues before pleading guilty.
- The reduction, although on the face of it relatively insignificant, of the discount for a guilty plea from 25% to 20% thereafter could be of huge financial significnace to large corporate defendants. For example, the difference between a one third and a 20% fine for a defendant facing a £3m fine is £400,000.
- Health and safety cases are often complex and the issues between the parties often only narrow as trial approaches. The reduced incentive to plead guilty before trial may actually increase the burden on the Courts, as more cases are taken to trial as an exercise in “brinksmanship” to obtain favourable bases of plea.