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Alexandra Scott reviews the lessons to be learnt from the line of sentencing authorities culminating in R v Bailey  EWCA Crim 1719 and the importance of wording when it comes to preserving credit for a guilty plea.
In 2017, the Sentencing Council introduced a Definitive Guideline on Reduction in Sentence for a Guilty plea, leaving Judges with little or no discretion on the credit that can be afforded for pleas entered at the Crown Court, even for indictable only offences.
The Guideline makes clear that:
“Where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made (subject to the exceptions in section F). The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court.”
The majority of the case law that has arisen out of the guideline revolves around: (1) what constitutes an indication of a guilty plea; and (2) the scope and application of the exception under section F1 at page 7 of the guideline (see below). To this R v Bailey  EWCA Crim 1719 adds a third strand – whether the pre-2017 caselaw on ‘breaking ranks’ still applies.
Great care must be given to the wording used on the Better Case Management (‘BCM’) Form to ensure that any indication cannot be accused of being equivocal – only an unequivocal indication will guarantee full credit.
Case law over the last two years has endorsed this stance, from R v Davids  EWCA Crim 553, R v Hewison  EWCA Crim 1278 and R v Hodgin  EWCA Crim 1388 (a large conspiracy to burgle) through to the recent decision in R v Bailey (a number of drugs conspiracies).
In each of these cases, the Court of Appeal has looked closely both at the wording of the question on the BCM Form and the wording of the answer given by the defence advocate.
The position is expressed clearly – and with an appropriate lack of equivocation – at paragraph 37 of Hodgin:
“… 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.” (per Spencer J)
In Hodgin, the question on the BCM form was “What plea is indicated?” whereas in Hewison the BCM form had a section for “Pleas (either way) or indicated likely pleas (ind only) or alternative offered”. The phrasing of the latter meant that even though the answer ‘guilty’ was to the question of ‘likely pleas’, the defendant “could have said no more to indicate that it was a definite and unequivocal plea of guilty”. In Hodgin, the decision to deploy the word ‘likely’ lay with the solicitor not with the wording of the form, and so more could have been done to convey the fact that the guilty indication was not equivocal. While practitioners may have historically used the word out of routine or an abundance of caution, the Court of Appeal found “The choice of the word “likely” was plainly deliberate”, and thereby rendered the plea equivocal.
This approach was described in Bailey as a “fairly rounded and robust view”, but significantly the Court commented that “even in Hodgin the Court did not adopt a mechanistic approach whereby the use of the word ‘likely’ inevitably disqualified a defendant from a full discount for a guilty plea” (per Green LJ at paragraph 61).
In Bailey, the waters were muddied not through any act of the solicitor instructed, but the legal advisor. In relation to the section headed (as in Hodgin) “Pleas (either way) or indicated likely pleas (ind only) or alternative offered”, the solicitor had written “G (indicated)”. It was in section 2 of the form marked “Insofar as known, Real Issues in the case” the legal advisor wrote “None – guilty plea likely at CC”. The Court decided that “We do not consider that the potentially inconsistent entry made by the Court officer undoes the notification by the instructed solicitor that indicated an actual future guilty plea”.
He knew what he had done
How inevitable the loss of credit flowing from the word “likely” proves to be will depend on the circumstances of the particular case, and realistically whether any of the considerations under the exception in section F1 of the guideline (page 7) apply.
F1 provides the following:
“Further information, assistance or advice necessary before indicating plea
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.
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.”
Practitioners have sought to rely on this exception in particular in relation to large conspiracies, especially in recent years when the practice of serving only a charge sheet, MG5 case summary, and PNC list of previous convictions at the Magistrates’ Court has become widespread.
The approach of the Courts has been strict, however, with judges reluctant to allow credit of over 25% even in circumstances where the offences are indictable only and no evidence has been served at the first appearance.
In the case of Hodgin, the detailed case summary ran to 45 pages and was only served a few days after the first appearance in the Magistrates’ Court, nonetheless the Court of Appeal upheld the Judge’s decision to accord only 25% credit, commenting at paragraph 48 that “He knew what he had done. He was plainly guilty of conspiracy” (per Spencer J).
However, the Court did give some examples of considerations that may lead to F1 applying: if “for example, the prosecution had not determined what charges it was going to bring, or the proposed charges were vague and uncertain” (per Spencer J at paragraph 49).
The Court also helpfully drew attention to further guidance issued by the Sentencing Council on 23rd June 2020, including that when considering the F1 exception, “the court must keep in mind the practical difficulties of defendants accessing legal advice during the present emergency”.
In Bailey, one of the appellants argued that R v Sanghera  2 Cr App R (S) 15 applied. At paragraph 19 of Sanghera, Bean LJ stated that “it is in our view important in a complex and multi-defendant case to give particular credit to the first defendant to break ranks and plead guilty”.
Sanghera, however, pre-dated the Definitive Guideline, and the Court in Bailey found greater assistance from the case of R v Hoddinot  EWCA Crim 1462:
“…If a defendant is entitled to full credit, and the court is persuaded that weight should be given to the fact that he was the first to plead guilty and by doing so encouraged others to plead guilty, that might be treated as a mitigating factor justifying some reduction in the sentence which would otherwise be appropriate before credit is given for the guilty plea. But whether such a reduction should be made will be a fact-specific decision and Sanghera did not lay down any fixed rule applicable to all cases…” (per Holroyde LJ)
In Bailey the Court observed that “In many multi-handed cases there will be one or more defendants who are in the vanguard of those entering a plea; after all someone has to be the first. But this does not mean that, by this fact alone, they are inevitably entitled to more than the standard credit for plea.”
It seems that ‘breaking ranks’ in large, complex multi-handed cases is perhaps better dealt with as a matter of mitigation – especially if it leads others to ‘follow suit’ – rather than credit.
Notwithstanding the latitude in sentencing being endorsed by the Court of Appeal during the circumstances of the current pandemic, the direction the case law is moving in appears to tighten the interpretation and application of the Guidelines on credit. This whole area may soon become ripe for reform.
Alexandra Scott is frequently instructed in substantial organised crime cases and conspiracies. She has substantial experience of dealing with sentencing appeals in the Court of Appeal Criminal Division, including on the issue of credit, appearing in the successful appeal of Mihai-Darie Raduca  EWCA Crim 279.
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