Sentence Reductions for Guilty Pleas: December 2020

By Jay Gormley, Julian V. Roberts, Jonathan Bild and Lyndon Harris

• Most convictions in England and Wales in the Crown Court and the magistrates’ courts arise as a result of the defendant entering a guilty plea. Courts are explicitly required to consider the guilty plea when passing sentence by section 73 of the Sentencing Code (previously section 144 of the Criminal Justice Act 2003). Defendants who plead guilty and who waive their right to a trial are normally entitled to a sentence reduction. All common law jurisdictions offer sentence reductions to defendants who forgo their right to trial and instead plead guilty.

• The primary source of guidance in England and Wales regarding the levels of reduction appropriate in cases of a guilty plea is the definitive guideline issued by the Sentencing Council in 2017 to replace an earlier guideline issued in 2007.

• Two principal justifications currently exist for offering sentence reductions to defendants who plead guilty. First, a guilty plea saves witnesses from having to attend court to give evidence. This may require multiple appearances and can be time-consuming and stressful. Second, a plea, particularly if entered early in the criminal process, conserves criminal justice system resources. The police, the Crown Prosecution Service and the court system all conserve resources when a trial is avoided. A guilty plea may be considered evidence of remorse on the part of defendants, but this factor is considered elsewhere in the sentencing methodology.

• The sentencing guideline recommends a sliding scale of sentence reductions: later guilty pleas attract a more modest sentence reduction. If a plea is indicated at the first stage of the proceedings, a sentence reduction of one-third of the custodial sentence should be awarded. The guideline also specifies that one-third is the maximum reduction appropriate across all cases. A plea entered after the first stage attracts a maximum reduction of one-quarter. The reduction awarded should decrease to a maximum of one-tenth on the first day of trial. The guideline includes a series of exceptions to the recommended reductions. These allow a departure from the recommended maximum reductions. For example, if there were circumstances which significantly affected the defendant’s ability to understand what was alleged against them or otherwise made it unreasonable to expect the defendant to indicate a guilty plea sooner. In addition, there is a separate regime for young defendants.

• A guilty plea may also affect the type of sentence imposed. For example, a court may take a guilty plea into account by reducing a custodial sentence to a community order or by reducing a community order to a fine.

• The 2017 guideline modified a previous guideline issued in 2007. The new guideline sought to increase the consistency of plea-based reductions to sentence and to encourage defendants who intended to plead guilty to do so at the first opportunity – rather than later in the criminal process. In the years preceding 2017, a significant proportion (approximately one-third) of trials were avoided close to the trial date for different reasons. A proportion of these so-called ‘cracked trials’ arose as a result of the defendant entering a guilty plea well after the first opportunity. The guideline was not intended to affect the overall rate of guilty pleas entered.

• Research conducted prior to the introduction of the latest guideline revealed that courts were broadly following the 2007 guideline’s recommended reductions. Thus, almost all (89%) of defendants who entered an early plea received the one-third reduction recommended by the 2007 guideline. The empirical pattern of reductions diverges to a greater degree for pleas entered at a later stage due to circumstances such as late service of evidence or late compliance with disclosure obligations. No comparable data have been published to determine whether the pattern of sentence reductions has changed as a result of the new guideline.

Read the full report here