Full credit for an early guilty plea: you can't have your cake and eat it

Plaku & Others [2021] EWCA Crim 568 is another reminder to practitioners that a one-third discount for an early guilty plea will only be given if there is "an unequivocal indication" that the defendant wants to plead guilty at that first stage of proceedings.

As Holroyde LJ explained:

"An indication of a "likely" or "probable" plea is not enough, as by definition such an indication keeps open the possibility of a not guilty plea and thus negates the advantages referred to in the "key principles" section of the guideline. Words such as "likely" or "probable", or anything else which places a qualification on the intended plea, should therefore be avoided."

The court’s general conclusions were these:

1. Indictable offences: although a defendant cannot enter a plea before the magistrates' court, he can (and will, by virtue of r. 9.7(5) CrimPR) be asked to indicate whether or not he intends to plead guilty at the Crown Court. If he unequivocally indicates that he does, and then enters his guilty plea at that first hearing in the Crown Court, a full reduction of one-third should be made.
2. Either-way offences: in these cases s. 17A(5) Magistrates' Court Act 1980 bites. The defendant will be asked if the matter were to proceed to trial if he would plead guilty or not guilty. If, unequivocally, he indicates he would plead guilty he is then treated as having pleaded guilty and a full reduction of one-third should be made. The court confirmed that the full reduction should still be made if a guilty plea is indicated at the later stage of the plea-before-venue procedure in accordance with s. 20(7) of the 1980 Act.

The court also rejected the submission that there was an 'additional sliding scale' between the one-third and one-quarter points, although the court did consider that there might be 'exceptional circumstances' in which this might arise.

Applying this reasoning to the appeals before the court, the following scenarios were discussed:

1. Where D is not asked to enter a plea at the magistrates' court

The court noted that, in this case, there was a 'lack of clarity' as to precisely what happened in the magistrates' court, but concluded that BCM ('Better Case Management') forms had been completed even though they were not available to the court. There had not been any formal written indication of a guilty plea by the defendants. The court concluded that the sentencing judge had correctly applied a one-quarter discount.

2. BCM form endorsed with "G pleas anticipated to most of these charges at PTPH"

This too was held to be insufficient to attract full credit. In addition to having the benefit of access to the BCM form, the Court of Appeal was provided with an attendance note in which it was revealed that “a decision was taken not to give any indication of plea because it was hoped that discussions with the prosecution might reduce the number of charges”.

The court concluded that D had failed to give an unequivocal indication of guilty, finding that: "on the contrary, he chose to keep his options open in the hope that he would ultimately be able to plead to fewer offences".

3. BCM form endorsed with "potential indicated plea"

In this case the relevant section of the form indicating the real issues in the case read "none known – possible basis of plea to be mooted". The defence advocate apparently indicated that there would be a likely guilty plea, but that the defendant disputed parts of the prosecution case. The court record recorded a "plea of not guilty or none indicated".

In this case, the judge decided that a plea of one-third was appropriate as he considered that it was not possible to indicate a plea in the magistrates' court to an indictable only offence. This approach was challenged as wrong in principle by the Attorney General, resulting in a sentence that was unduly lenient.

The court concluded that the judge had been wrong to afford the defendant full credit and concluded that it was a 'clear error of principle' in light of its review of the law. However, it declined to adjust the sentence.

Conclusion

As the Court of Appeal noted, this case follows a recent string of cases in which the court has refused appeals where there have not been unequivocal pleas of guilty, and also where it has emphasised the need for procedural compliance: in Davids [2019] EWCA Crim 553, the indication ‘likely to be guilty pleas on a basis’ was held to be insufficient for full credit, so too in Khan [2019] EWCA Crim 1752. In Yasin [2019] EWCA Crim 1729 the court stressed it was for the parties to complete the BCM form, and in Hodgin [2020] EWCA Crim 1388 advocates were reminded that they must use the correct version of the BCM form.

Ultimately legal representatives must be aware that unless one of the exceptions in Section F of the Definitive Guideline apply, sentencers are likely to take a hard line on the issue of credit where there has not been an unequivocal plea of guilty. Defendants cannot otherwise expect to have their cake and eat it by indicating that they are ‘likely’ to plead guilty at some further hearing.