Often in news reports (and when we write cases up) we talk about people having ‘credit’ for a plea of guilty. What does that mean?
The Courts have always given a defendant a ‘discount’ for entering a plea of guilty. There are various reasons for this : it saves time and money (trials are obviously a lot more expensive), it spares the victim the stress of giving evidence and it can be an indicator of remorse.
The general rule of thumb was that a discount of 1/3 would be given for a guilty plea at the ‘earliest opportunity’.
This general rule was made formal over time. According to s144 Criminal Justice Act 2003:
(1) In determining what sentence to pass on an offender who has pleaded guilty to an offence in proceedings before that or another court, a court must take into account—
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which this indication was given.
Putting the two together, the discount runs on a sliding scale from 1/3 down to zero depending on when the plea is indicated (as opposed to formally entered to the Court). Generally speaking, the first opportunity would be the first appearance at the Magistrates’ Court, although every case is different and should be treated on its own facts.
In practice, up until the ‘Plea and Case Management Hearing’ in the Crown Court, the ‘full’ discount will be given. Thereafter the amount will diminish to about a quarter, until the day of trial where a plea will normally attract a discount of 10%.
However, many Judges will often give a greater discount than that for a plea on the day of trial. This is a pragmatic way of dealing with things, as well as a recognition that with the current state of funding for the defence and organisation in the CPS, the day of trial is sometimes the first realistic time that both parties (and lawyers) can sit down and discuss and analyse the case properly.
Are there any exceptions?
Yes. In cases of murder, the discount in the tariff is 1/6 rather than 1/3 and, in any event, not greater than 5 years. There is no particular rational reason for this.
The view used to be that very strong evidence was not a reason to withdraw the discount for pleading guilty. Increasingly in recent years, the courts’ attitude to this has changed and frequently we now see reference to “an overwhelming case” as a justification for reducing what would otherwise be a full discount for the plea. In some instances, the Court of Appeal seem to use the “overwhelming case” justification as a means of limiting the reduction in sentence that the court feels bound to make (e.g. they recognise the guidelines would require a 6-month reduction in the appellant’s sentence but due to the nasty facts of the offence/the fact they have taken a disliking to the appellant, they use the “overwhelming case” line to reduce the plea credit, thereby reducing the 6 month reduction in sentence).
The fact that the Judge considers that the maximum sentence is insufficient is not a reason to give less of a discount (a common example is dangerous driving where the maximum is two years).
A Judge does always have a discretion as to what discretion can be given. Sometimes this can be higher than 1/3 if an early plea is coupled with genuine remorse.
There are also exceptions for those offences that attract a mandatory minimum sentence.
Is it right that there should be a discount?
When it was suggested in 2011 that there could be a greater discount (of up to 50%) there was strong opposition in many newspapers. Perhaps as part of a backlash to this, there were some people questioning whether a discount should be given at all – the rhetorical question was phrased as to why guilty people should be ‘rewarded’ for pleading guilty in this away, or that they would somehow escape part of their punishment.
We would suggest that the criticism is misguided and it is absolutely right that people should get credit. This is for the reasons set out above. To get rid of the discount entirely would mean that many more people would go to trial. There would be nothing to lose for them and there is always the chance that something will go wrong or a jury will return a surprising verdict. This would be ruinously expensive, as well as being terrible for victims who would have to go through the process of giving evidence in almost every case. We already see this happening (to some extent) in firearms cases where there is a mandatory 5 year sentence (with no discount) for some offences – many cases that would perhaps otherwise end in a plea of guilty go to a trial.