Court of Appeal guidance on credit for guilty plea indications
This article reviews the Court of Appeal case of R v Plaku  EWCA 568 which provides guidance concerning credit for guilty plea indications.
R v Plaku  EWCA Crim 568 provides a summary of the general principles which apply when deciding the appropriate reduction of sentence for a guilty plea. The judgment does not break new ground so much as offer a recitation and clarification of the sentencing guideline on this subject.
In effect since 1 June 2017 the definitive guideline (“Reduction in sentence for a guilty plea”) sets out those factors which the courts should consider when reducing a sentence to reflect a guilty plea. Despite the publication date, the appeal justices begin the judgment with the observation: “…that it appears from submissions made in the present cases, there is still some misunderstanding of the guideline” [para.6].
To the extent that Plaku does offer something new, it sees the Court of Appeal endorse a far more exacting approach to decisions about plea discounts. For any judge inclined to be strict about credit, this judgement validates their approach.
The Framework Principles
Plaku begins by summarising the following three matters, relevant to the application of the guideline namely:
- That a court must follow the guideline, unless satisfied that it would be contrary to the interests of justice to do so.
- That “…a clear distinction is deliberately drawn between the reduction in sentence available at the first stage of the proceedings and the reduction available at any later stage” [para.6].
- That section 73 of the Sentencing Code created by the Sentencing Act 2020 (formerly section 144 of the Criminal Justice Act 2003) requires the court to consider both of the below matters when deciding what is appropriate in terms of credit, namely:
a. The stage in the proceedings for the offence at which the offender indicated the intention to plead guilty.
b. The circumstances in which the indication was given.
The General Principles
The Court of Appeal identified the following general principles as being relevant to the question of plea discounts:
- The benefits of a guilty plea are three-fold: to lessen the impact on the victim, to save victims and witnesses from having to give evidence and to save public money and time by reducing the number of hearings. The rationale behind awarding credit for guilty pleas is to recognise such benefits. It follows that these benefits are maximised the earlier a guilty plea is entered [para. 5].
- The crucial issue is when a guilty plea is indicated – not when it is formally entered [para.6].
- Any indication of a guilty plea must be unequivocal (with the CA approving R v Hodgin  EWCA Crim 1388). Any expression (oral or as an entry in a BCM form) that a defendant “may” or “will probably” plead guilty is deficient - leaving open as it does, the possibility of matters still being contested [para.17-23].
- Use of the BCM form in indictable-only offences is obligatory and a copy of this form must be uploaded to the digital case system. Unauthorised versions of the BCM form must no longer be used (as happened in R v Hewison  EWCA Crim 1278) [para.16].
- Section D of the guideline clearly stipulates that the maximum reduction is that of one-third and this will usually be reserved for guilty plea indications at the “first stage of the proceedings”, subject to the “Section F exceptions” in the guideline.
“First Stage of the Proceedings”
- The Court of Appeal considered the meaning of “the first stage of the proceedings” in the context of both indictable-only and either-way offences. For the latter, this will be when a defendant is asked – as part of the plea before venue procedure - “whether (if the offence were to proceed to trial) he would plead guilty or not guilty”. That is so, even if an indication he would plead guilty is given, not at the outset, but following a reconsideration at a slightly later stage of the procedure in accordance with section 20(7) of the Magistrates’ Court Act 1980.
- For indictable-only offences, the “first stage of the proceedings’” will be the completion of the Better Case Management Form (which contains a box in which to record the defendant’s intention as to plea).
- The appeal justices considered whether a reduction of “the order of one third or of somewhere between one-third and one-quarter” should be available for a defendant who did not indicate a plea at the first hearing but communicated his intention to plead the next time s/he appears in court. It was noted that the guideline makes a clear distinction between the “first stage of the proceedings” and any time thereafter. “In our view there will be very few occasions when the sentence of a defendant who has not pleaded guilty at the first stage…and who cannot bring himself within one of the exceptions, could properly be reduced by more than one-quarter” [para.27].
- The Court of Appeal noted: “…Bearing in mind the infinite variety of situations which come before the criminal courts, and the consequent undesirability of ever saying “never”, we are prepared to accept that an unequivocal guilty plea notified to the prosecution and to the court very shortly after the first court appearance should be treated as tantamount to plea at the first stage of proceedings and should receive full, or almost full, credit. But such circumstances will be rare”. [para.27].
- The Court of Appeal rejected the notion of an additional sliding scale of between one- third and one-quarter as being “wholly inconsistent with the structure of the guideline” – going on to say “…we reject the suggestion that such an approach should be routinely or frequently adopted” [para.27].
- Cases involving multiple charges or counts may see the court consider the question of credit separately for each matter, or where appropriate “…take a view across the charges as a whole and make the same reduction in each case” [para.28].
- For cases where the first hearing at the Crown Court involves a request that arraignment be postponed with “credit preserved” - “…there can be no question of the defendant preserving full credit until the next hearing…he is already too late for full credit”. If there is a good reason for arraignment to go off, the court may be persuaded to exercise discretion to preserve the one quarter credit. [para.31].
- Matters such as early admissions to the police, remorse or cooperation during a police investigation qualify as personal mitigation and may lead to some reduction in sentence. Such issues are wholly discrete however from the level of discount to be awarded for a guilty plea/indication. Further, these issues are fact-specific and “…must be considered before the appropriate reduction for a guilty plea is determined…and cannot lead to an increase in the level of that reduction” [para.29].
Section F of the Guideline – “Exceptions”
Any departure from the suggested sliding scale in section D of the guidelines will require the court to be satisfied that the facts of the case fall into at least one of the exceptions detailed at section F. Section F exceptions “cover a number of situations” and fairness requires that the courts “do not extend the exceptions beyond their proper scope” [para.7].
F1 makes provision for cases 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. In such cases, a reduction of one-third should still be made.
Plaku reminds us that for the purpose of F.1 the guideline distinguishes between those cases where it is necessary for the defendant to receive legal advice and have sight of the evidence to determine guilt in fact and law, and those where a defendant simply delays indicating a guilty plea in order to test the strength of the prosecution evidence and/or prospects of acquittal.
The above distinction in F.1 must, says the Court of Appeal, be observed by the courts to ensure that “the guideline is properly applied” and to deliver fairness to those defendants who do indicate a guilty plea at the first stage of proceedings. Put another way, the courts should not be issuing the same level of reward to the savvy, tactical defendant as the one who has indicated a plea at the first hearing and before sight of all the evidence.
The facts of the first appeal (Isuf Plaku) were said by the Court of Appeal to be:
“…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. The appellants therefore could have indicated their guilty pleas at the first stage of the proceedings, and should have done so if they wished to be given full credit” [para.41].
So, whilst defendants are permitted to await decisions on admissibility of evidence or to canvass the possibility of lesser pleas, the Court of Appeal notes that such decisions warrant a loss of credit.
The other section F exceptions are less contentious, with F2 and F3 dealing with Newton and Special Reasons Hearings and cases where the offender is convicted of a lesser or different offence from that originally charged. F4 deals with the minimum sentence under s.51A of the Firearms Act 1968.
For some, the judgment in Plaku may raise more questions than it answers.
Firstly, not all criminal cases fall comfortably into the “he knows whether he did it or not” rubric. It is interesting that no example is given for what might qualify as an F.1 exception - beyond the statement that decisions about exceptionality are fact-specific and “will cover a number of situations”.
Secondly, no reference is made to the extent to which the individual characteristics of a defendant might inform any assessment of the F1 exception. Is a teenage offender of good character for example to be treated in the same way as a 65-year-old recidivist? Does a lack of experience of the criminal justice system and/or the limitations of age, justify a delayed indication of plea?
Finally, what of the fact that a significant number of first court hearings are covered by pupils and junior practitioners? This is an inescapable feature of the advisory landscape (certainly at the Independent Bar) and begs the question: to what extent are defendants to be punished for not acting on advice which, albeit correct, may not have been delivered with the confidence or flair of a more experienced practitioner? Or following discussions with an advocate who could not address all their queries regarding the consequences of a guilty plea?
In addition to the above, there are the inevitable delays with the uploading of evidence onto the digital case system and provision of sometimes incomplete or inaccurate case summaries.
Plaku may be said to illustrate a growing disconnect between appellate discourse and the grass-roots realities of criminal justice. One thing though is clear, defence advocates and litigators alike, need to consider credit from an early stage and ensure that clients are aware of the risks that may come with delay.