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Credit for early guilty pleas – All change for Corporate Defendants?

On 1 June 2017, the revised Definitive Guideline on reduction in sentence came into force. This applies to all individuals and organisations where the first hearing is on or after 1 June 2017 (regardless of the date of the offence).

What are the key changes?

The new Guideline states that the crucial time for determining credit is the ‘first stage in proceedings’ which is defined as ‘normally the first hearing at which a plea or indication of plea is sought and recorded’. The reduction at this stage will be one third sliding down to 10% for a plea entered on the day of trial.

Contrary to the previous Guideline, which indicated that the first reasonable opportunity to indicate a plea might be in interview, the new Guideline makes it clear that a willingness to admit guilt in interview is a separate matter to be taken into account prior to deciding the appropriate level of credit.

Significantly, the Guideline also acknowledges that a reduction of one third may still be appropriate where there are particular circumstances that reduce a defendant’s ability to understand what is alleged or otherwise make it unreasonable to expect a defendant to indicate a guilty plea sooner than it does.

In a further welcome development, the Court’s are also prohibited from taking into account the strength of the prosecution evidence when determining the level of discount.

How will this effect the Corporate Defendant?

Many regulatory offences faced by corporate bodies are complex and may include strictly laid down defences or other limitations, the burden of proving which is usually on the defendant. Other offences may require a detailed analysis of the corporate structure and whether certain acts can be attributed to it. In those circumstances a corporate defendant may be justified in withholding a plea until such time that it has fully investigated the incident, received legal advice and/or instructed it’s own expert.

However, the new guideline makes it clear that the Courts should investigate whether an indication could have been given earlier than it was. If a conclusion is reached that the delay was not due to any lack of understanding or the need for advice then full credit will not be available.

Companies need to be alive to this issue and that, now, once the Summons is received the clock is ticking!

Whilst the recent changes seem to be positive, there is a question as to whether it will be possible to fully advise Corporate Defendants on the likely sentence at the ‘first stage in proceedings’ and maintain full credit.

In order to do so, lawyers will require information such as what the prosecution say about the extent of the defendants involvement since the sentence will be linked to factors such as ‘culpability’ and ‘risk of harm’ (particularly in Health and Safety cases). In document heavy cases (such as serious fraud) it is often difficult to assess these factors as it is rare for the Prosecution to serve all of its evidence by this stage of the proceedings. Whilst the new Guidelines contain an exception which recognises that it may be unreasonable to indicate a plea at the ‘first stage in proceedings’, it expressly excludes (some think unfairly!) the possibility of receiving maximum credit where the defence delay entering a plea in order to assess the strength of the prosecution case.

It is unclear whether this includes situations where it is difficult for practitioners to advise on the likely sentence. This is a crucial point, particularly in relation to Health and Safety offences, where the new Sentencing Guidelines (which came into force in February last year) have considerably changed the landscape by giving the Courts power to impose unlimited financial penalties based on culpability, risk of harm, and turnover!

The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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