New court guideline may push companies to hasty guilty pleas
- Date: Friday 16th June 2017
- PDF: Download
New court guidance on reduced sentences in return for early guilty pleas could push organisations into pleading before they have assessed the evidence and legal advice in their cases, defence lawyers warned.
Legal experts have raised concerns that the provisions in the new guideline are more restrictive than previous guidance issued in 2007. They also argue that an exception, which could provide flexibility for sentence reduction in safety and health prosecutions, is too open to interpretation by judges.
The new guideline, which applies to cases where the first hearing is on or after 1 June 2017 and will apply equally to magistrates’ courts and the crown court, retains the maximum previous level of reduction for guilty pleas. It states that where a guilty plea is indicated at the “first stage of proceedings”, a reduction of one-third should be made.
In the new guideline, the “first stage of proceedings” is normally the first hearing at which a plea or indication of a plea is recorded by the court. The discount for early pleas reduces to one-quarter after the first stage of proceedings, to one-tenth on the day of trial and could disappear once the trial is in progress.
Mike Appleby, solicitor at Fisher Scoggins Waters, said that most safety and health cases are “either way’ offences – they can be tried in the magistrates’ court or the crown court – and the first stage of the proceedings will be the first hearing in the magistrates’ court. The detail of the case against the defendant and the amount of evidence provided by HSE for that first hearing varies, he said.
In the past, he added, many cases would be referred up to the crown court, where the defendant would have more time to consider the case and perhaps obtain expert evidence before the first hearing some weeks later.
Appleby told IOSH Magazine that in safety and health prosecutions “it was not uncommon for a defendant not to indicate a plea at the magistrates’ court and then, in the time between the hearing in the magistrates’ court and the first hearing in the crown court, to negotiate a basis of plea with the prosecution. In those circumstances, under the old guidance, the judge would usually accept the guilty plea entered at the crown court hearing was the first reasonable opportunity and give full credit for the plea.”
The provisions in the new guideline are subject to some caveats. One of these, exception F1, provides that, “where the 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, a reduction of one-third should be made”.
Appleby is sceptical that the exception will be applicable in many OSH prosecutions.
“If you take a prosecution under section 2 or 3 [of the Health and Safety at Work Act], and there’s been a serious injury or death, the reality is that prima facie case of exposure to risk will have been proven and then it’s over to the defence to prove that they have done all that is reasonably practicable,” he explained.
“A judge could turn round and say, ‘you know there’s been an exposure to risk, you must know whether you’ve done everything that is reasonably practicable. What’s that got to do with the prosecution’s evidence?’”
Appleby added the new guidance should be seen in the context of other reforms in the criminal courts such as “transforming summary justice” and “better case management”, which aim to make every hearing count thereby reducing or eliminating wasted hearings and wasted time.
“Consequently, a defendant is expected to indicate at an early stage his plea and what he believes are the real issues in the case,” he explained.
Appleby said: “What this is pressing towards, is that companies, when they have incidents have really got to start thinking early on, if there’s going to be a prosecution, ‘what’s my stance going to be?’”