How much credit a Defendant should be afforded for his guilty plea, and when is the first opportunity to enter a guilty plea, has been the subject of a very recent decision (R v Plaku and ors) handed down by the Court of Appeal on 23 April 2021. Unfortunately, it does not make good reading for defence practitioners. The Court of Appeal dealt with the conjoined appeal of three sentences (one an AG reference) and were concerned with what can be considered the first stage in proceedings to enter a guilty plea, and thereby achieve full credit of one third. The Court of Appeal were unanimous in finding that in order to obtain full credit, any plea of guilty has to be either made orally in the Magistrates Court in the case of either way offences, or in the case of Indictable only cases, indicated on the Better Case Management (BCM ) form. It is not enough to say that likely guilty pleas will be forthcoming. Any indication must be entirely unequivocal, and not subject to a basis being accepted. There will always be particular circumstances as set out in the Sentencing Guidelines governing reduction in sentence for guilty pleas, however the Court held that those circumstances would be limited.
CREDIT FOR GUILTY PLEA Post R v Plaku and Others
A Commentary by Daniel Kersh of 187 Fleet Street Chambers and Jacqueline Appleton of Shelley & Co, Cambridge
R v Plaku, Plaku, Bourdon and Smith  EWCA Crim 568
- The Case, concerned 2 conjoined appeals of Defendants who had not been afforded full credit, and an AG reference for a sentence in which full credit had been afforded. The Court first set out some general principles which can be summarised as follows:
- The Guideline for Reduction of Sentence for a Guilty plea (together with section 73 of the Sentencing Code 2020) is concerned with when a plea is indicated, rather than entered
- In relation to either way offences, the Defendant will be asked to indicate his plea orally in the Magistrates Court ie will be asked whether he pleads guilty or not guilty to the offence; this will be the first opportunity to indicate a plea
- In relation to indictable only offences the accused must be asked whether he intends to plead guilty in the Magistrates Court (rule 9.7(5) Criminal Procedure Rules); A Better Case Management Form must be completed in the Magistrates Court. The onus to complete the form, falls on the Defendant and their legal representatives, and not upon the Magistrates Court (R v Yasin, applied). A new revised form (November 2020) includes a box requiring an indicated plea to the indictable offence. If the accused unequivocally indicates that he will be pleading guilty, he will be entitled to full credit. An indication of likely to plead guilty is not enough (R v Hodgin, upheld)
- A properly completed BCM form must be uploaded to Caselines in the event of a sending.
- Where an accused faces more than one charge and does not at the first stage give an unequivocal indication of an intention to plead guilty to all the charges, the sentencing court may choose to deal with the charges separately with differing levels of credit, or choose to take a view across the charges as a whole and make the same reduction in each case; each case will be fact specific.
- Matter such as full admissions made in interview, or being first to plead in a conspiracy leading to others to plead, are separate heads of mitigation, to be decided upon before reducing sentence for a guilty plea.
- The concept of ‘’preserving full credit’’ for an adjourned hearing at the Crown Court is redundant. The Defendant will have lost the opportunity for full credit by not entering an unequivocal indication at the Magistrates Court
- The Exception at F1 of the Sentencing Guidelines for not entering a guilty plea at the first opportunity, but still acquiring full credit, is preserved; however the circumstances in which the Court will be satisfied that the Defendant had a reduced ability to understand what was alleged or otherwise to be expected to enter a guilty plea sooner than done, are to be limited in scope. The Court emphasised that sentencers should continue to distinguish between cases in which it is necessary to receive advice and/or have sight of the evidence in order to understand whether the Defendant is in fact and law guilty or not guilty of the offences 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.
- The Court accepts that there may still be exceptional circumstances in which a Court might be persuaded that an unequivocal guilty plea notified to the Court and to the Prosecution very shortly after the first court appearance should be treated as paramount to a plea at the first stage of proceedings, and should receive full, or almost full, credit. But such circumstances will be rare.
- The application of the Sentencing Guideline Note of June 2020 governing the difficulties of Defendants accessing legal advice during Covid-19 emergency, continues to apply.
- The first case of the Plaku brothers concerned sentences of imprisonment for PWITS conspiracy offences. In both cases no indication had been entered at the Magistrates Court but both entered pleas of guilty at the Plea and Case Management Hearing at the Crown Court. Counsel submitted that informal conversations with the Prosecution were taking place regarding role and duration of the conspiracy, in order to enter a plea at the Crown Court. The Court held that this was a classic case in which the appellants knew that they had been involved in drug dealing, knew or could readily be advised that they were in fact and law guilty of conspiracy to supply controlled drugs, and therefore could not bring themselves within the exception of F1. Issues as to duration and role did not prevent an indication of guilty plea being given at the first hearing in the Magistrates Court. Accordingly the reduction of one quarter, rather than one third as argued, for the pleas entered, was upheld.
- The case of Simon Bourdon concerned a stalking case, involving a host of either way charges, in which the Defendant made some qualified admissions in interview, but at the Magistrates Court the record shows he either entered pleas of not guilty or made no indication. On the BCM form it stated ‘’Guilty pleas anticipated to most of the charges at PTPH. Court does not request PSR given the vagaries over which offences will be guilty pleas’’. At a PTPH the Defendant pleaded guilty to the charges. The Court held that he was only entitled to 25 percent discount. The appellant failed to give an unequivocal indication of guilty pleas at the first stage of the proceedings. ‘’On the contrary he chose to keep his options open in the hope that he would ultimately be able to plead to fewer offences’’.
- The AG refence concerned in part the application of full credit afforded to Mr Smith who entered his plea at the Plea and trial Preparation Hearing. The Crown at sentencing had agreed with the Defence Advocate that the Magistrates had not put the matter to the Defendant at the plea hearing, and therefore ‘’there was no opportunity for him to plead’’. The Court of Appeal rejected this as the correct approach, as the Defendant ‘’could have given an unequivocal indication of his intention (to enter a guilty plea)’’. Therefore, the Court had erred in awarding full credit; however in the circumstances of this case, they would not interfere with the overall sentence.
- As prefaced earlier, this is a difficult Judgment for defence practitioners. Defendants will need to be advised that the only opportunity for achieving a full one third credit will be at the first appearance in the Magistrates Court. Entering ‘’likely to’’ plead guilty or ‘’probable guilty pleas’’, will not suffice. The financial implications of this approach will not be lost on practitioners if Indicatable offences routinely become committal for sentences. The BCM form will need to be completed with extra care and consideration if full credit is to be preserved. A GBH without any medical evidence, or drugs/firearms offences without a SFR, could be said to be a reason where one cannot advise on law and facts whether that person is guilty or not. However, a proper paper trail needs to be laid. The onus will be very much on the defence to show why an unequivocal plea could not have been made earlier. Conversely, pre-Court engagement with the CPS, and instructed Counsel/Advocate, may well be necessary to ensure that a proper basis of plea, and pleas to some, if not all charges, are acceptable at the time of asking. What is clear is that the lot of a solicitor or Counsel advising in respect of credit at the first hearing, has become all the more stark.