Coming into force on 1 June 2017, the latest sentencing guideline proposes a reduction in sentence for an early guilty plea.
The Sentencing Council Guideline on Reduction in Sentence for a Guilty Plea comes into force for cases where the first hearing is on or after 1 June 2017. It restricts the timing and amount of discount that will be applied to reduce fines for most crimes, including health and safety offences, if the defendant pleads guilty.
How do punishment discounts for a guilty plea work until now?
The old arrangement for cases that had their first hearing before 1 June 2017 is that if a defendant pleads guilty “at the earliest reasonable opportunity”, then the court will usually discount the criminal sentence by a third. This leaves discretion for the court.
Most health and safety cases in the past have led eventually to a guilty plea and, mostly, the one third discount was applied, even though it may have taken weeks or months of negotiation between the prosecution and the defence to agree the basis of the plea.
What would have happened under the new Sentencing Council proposals?
The Sentencing Council conducted a consultation between February and May 2016 on a draft proposed guideline that unfairly penalised health and safety defendants. It was written on the assumption that a criminal is a person who knows whether he or she has committed the crime (e.g. burglary). In order to get the maximum one third discount under the proposed rules, the defendant would have been obliged to plead guilty at the first hearing in the Magistrates’ Court or the first time when the court asks how he or she intends to plead.
At this stage in health and safety cases, defendants often won’t have had time to get informed legal advice on the chances of successfully running the defence that they did everything reasonably practicable.
What is the position under the definitive guideline on reduction in sentence for a guilty plea?
On behalf of the Health and Safety Lawyers Association, I argued in the consultation for changes to be made to reflect the special circumstances of health and safety cases. I am relieved that the final version protects health and safety defendants with an important exception that restores the court’s discretion as follows:
“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.”
A good health and safety defence lawyer will not usually advise his or her client to plead guilty without first seeking to negotiate and hopefully agree a basis of plea that is acceptable to the prosecution and defence. As part of that resolution, the prosecution can be asked to confirm to the court that in their view the above exception has been met, in which case the court retains the discretion to award a maximum one-third discount even if the case has passed beyond the first court hearing.
This is a major concession and a great source of relief to health and safety defence lawyers. It ought also to be good news for prosecutors, because retaining the maximum discount prolongs the incentive for health and safety defendants to plead guilty in appropriate cases.
Dr Simon Joyston-Bechal is a director at Turnstone Law.
Reduction in Sentence for a Guilty plea guideline here
H&S Offences, Corporate Manslaughter and Food Safety and Hygiene Offences guidelines here
By Mike Robinson, British Safety Council on 26 February 2020
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