Preserving Full Credit for a Guilty Plea
January 29, 2021
For defendants who plead guilty to offences in the magistrates’ and Crown Court, a long established principle allows a reduction in the sentence that would normally be imposed. The sentencer must take into account the stage in the proceedings at which the offender indicated his intention to plead guilty, and the circumstances in which the indication was given. The maximum credit available is one third. In this article, Harriet Lavin looks at a recent case in the Court of Appeal that dealt with whether an indication of a ‘likely guilty plea’ in the magistrates’ court for an indictable only offence was sufficient to maintain full credit.
For indictable only offences, a defendant is not able to enter a plea at first appearance in the magistrates’ court. The case will automatically be sent to the Crown Court for a plea to be entered there.
Since 2012, the Criminal Procedure Rules have required the magistrates’ court to ask whether the defendant intends to plead guilty in the Crown Court and if the answer is yes, make arrangements for the Crown Court to take the defendant’s plea as soon as possible. The Better Case Management form (“BCM form”) is filled in by the defence representative, a date for PTPH in the Crown Court is given and the court continues ploughing through its list of cases to deal with.
Whilst the hearing can be over within a minute, the importance of that indication on the BCM form has recently been confirmed in the case of R v Lee Hodgin  EWCA Crim 1388. The appellant had appeared at the magistrates’ court the day after his arrest and charge. He was represented by a solicitor and charged with conspiracy to commit burglary. Because the offence of conspiracy is indictable only, the case had to be sent to the Crown Court for trial. The BCM form was completed by the solicitor, who wrote in response to what the indicated plea was, likely guilty plea.
The case was sent automatically to the Crown Court for PTPH where the appellant pleaded guilty. The appellant had initially entered a plea on a basis that limited his involvement to a select few of the burglaries. The prosecution did not accept this and so a Newton Hearing (a hearing to determine whether the prosecution’s version is correct) was listed. The hearing was ultimately vacated as the dispute was resolved a few days before due to the appellant amending his basis to include twice the number of burglaries he had initially admitted.
On 13 February 2020 in the Crown Court at Chester, the appellant was sentenced by His Honour Judge Woodward to a term of 6 years 9 months’ imprisonment. At sentence, Judge Woodward made the following observation: “One of you indicated that it was very likely you would plead guilty, but I am afraid that is essentially meaningless. All of you pleaded guilty at the first appearance at the Crown Court. You are entitled to 25% credit for that.”
The sole ground of appeal was that the appellant should have been afforded full credit of one third for indicating in the magistrates’ court, when he was sent for trial, that it was a “likely guilty plea”. After considering the line of authorities on the matter, the Court of Appeal stated:
We agree that these cases establish that in order to receive full credit of one-third pursuant to the guideline, where at the magistrates’ court it is not procedurally possible for a defendant to enter a guilty plea, there must be an unequivocal indication of the defendant’s intention to plead guilty. An indication only that he is likely to plead guilty is not enough.
It was therefore confirmed that nothing less of an unequivocal indication of guilt would be sufficient to preserve credit. However, the defence went on to try and rely, in the alternative, on section F of the Sentencing Council guideline that allows the court to take into account particular circumstances that significantly reduce the defendant’s ability to understand what was alleged or otherwise, therefore making it unreasonable for the guilty plea to come any sooner than was done. In such cases, the defendant is still entitled to one-third credit. It states:
In considering whether this exception applies, sentencers should distinguish 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(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.
The defence argued that given the complex nature of the conspiracy and the fact that no case summary had been served, this was a case in which it was necessary for the appellant to receive advice and/or have sight of evidence in order to understand whether he was in fact and in law guilty of the offence charged; it was not a case in which the appellant was merely delaying his guilty plea in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal. The defence argued that it is not easy for an advocate in the magistrates’ court to fully advise with precision and certainty a defendant who is produced with others from custody in relation to a matter which involves an allegation made up of over 40 acts of criminality. Definitive advice and instructions have to be given and received in a more measured way, with time to reflect and consider all relevant issues prior to the PTPH.
The Court of Appeal did not accept this argument either. Whilst the Court conceded that a conspiracy can sometimes be a difficult and complex matter for a solicitor to explain to a defendant, the appellant himself knew what he had done and was plainly guilty of the conspiracy. He was asked about all the individual burglaries in interview, and so was fully aware of what the allegations were. Unless the charges were unclear or vague, the bench were unprepared to accept that he wasn’t capable of entering a guilty plea.
The withholding of full credit of one-third was therefore not wrong in principle. The decision of Judge Woodward was correct.
The Court of Appeal has made it clear – an indication of a ‘likely’ or even ‘very likely’ guilty plea is not enough. The plea has to be unequivocal. Furthermore, just because the offence charged is complex and involves careful consideration by the representative, this does not mean the court will accept that the defendant was unable to enter his plea. The court has cemented its strict position on credit; it will be a rare occurrence in which a Judge will accept that the defendant was incapable of knowing whether he was guilty or not. Judges are likely to be unsympathetic to this argument, whether or not the legal representative has been able to properly advise. Only when the charges are unclear or vague does it seem the court will award full credit post first appearance.