Crime Team Bulletin – Falling Dominoes: Guilty Pleas, Credit and the “first to break ranks”

On 23 April 2021, in R v Plaku and others [2021] EWCA Crim 568 a strong Court of Appeal, headed by Holroyde L.J., gave what must be regarded as the leading judgment on credit for a guilty plea. And the warning to defence practitioners is clear and unequivocal: only those who make it clear that they intend to plead guilty at the earliest stage in proceedings will be entitled to full credit of one-third discount. The following principles emerge:

• For an indication of plea to attract the maximum credit of one-third (indicated at the first stage in proceedings), it needs to be unequivocal in the Magistrates Court, even if the defendant is charged with an indictable-only offence. This means words like “likely”, “probable guilty plea”, or “likely guilty plea on a basis” will not suffice. However, if there is evidence that the advocate indicated (even orally) that the defendant would be pleading guilty that should attract the full one-third discount.
• Any indication of plea in the Magistrates Court needs to be recorded on the up-to-date BCM Form and uploaded to DCS.
• If the above has not happened, then maximum credit will only normally be awarded if one of the exceptions set out in the Guideline apply (see exception F1 – the need for “further information, assistance or advice” before indicating his plea). The “exception” which enables maximum credit of one-third discount will only be applied if the further adjournment is necessary rather than delaying plea to consider the strength of the evidence.
• In some cases where there are multiple charges and indications, different credit for plea could apply to the different offences. This is perhaps no more than common sense and has to be case specific.

The Court in R v Plaku and others went on to analyse R v Bailey and others [2020] EWCA Crim 1719 and R v Hoddinott and others [2019] EWCA Crim 1462 and whether additional assistance or a decision by one defendant to plead guilty could merit further discount. These three cases should be seen as a triumvirate of authorities when considering the level of credit available to the lone defendant who decides to plead guilty before his co-defendants. The Court concluded that the level of reduction available to the defendant who leads the way by pleading guilty was a separate mitigating factor. It should not be confused with, or infused into, the concept of credit for a guilty plea.

Anyone who has prosecuted or defended multi-defendant conspiracies, especially in relation to the supply of drugs or weapons, will be acutely aware of the considerable time that is saved by the decision of a defendant to plead guilty to an alleged criminal agreement. The agreement is proved, subject to the Court entertaining argument as to whether a defence has been “closed off”. The trial is shorter. Most importantly, the dominoes often start falling. Other defendants start to plead guilty.

However, historically the scope of additional mitigation for those who “break ranks” has been considerably reduced since the observation of Bean L.J. in R v Sanghera [2016] EWCA Crim 94 (Judgment on 22 March 2016) where there was perhaps a loose use of the phrase “credit” [19] when the Court stated, “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.”

This principle was considered in Bailey and others which specifically concerned the issue of credit and totality in multi-defendant drugs conspiracies. The Court, whilst confirming the totality principle, said that in most cases a sentencing judge has a broad discretion to arrive at the sentence he deems to be “just and proportionate” and that he does not even have to use this language. Consecutive sentences could often be passed, especially when it came to differing criminal agreements over a period of time, (contrast the example in the Sentencing Guidelines where supply of two types of drug during the same transaction usually merit concurrent sentences) and that “it is “usually” impossible to arrive at a just and proportionate sentence simply by adding up together notional sentences. Totality thus assists the judge to arrive at the correct sentence; it is not about reducing sentences as opposed simply to getting to the correct final sentence”, per Greene L.J. at [36]

The Court in R v Bailey and others, when considering the “Sanghera” principle above, as analysed by Holroyde L.J. in R v Hoddinott and others made the following observation at [46], “We would also point out that the Court of Appeal in Hoddinott cast considerable doubt upon the force of what was, in any event, very much a tangential point in Sanghera”. At paragraph 29 the Court pointed out that the Totality Guideline post-dated Sanghera and explained, “we observe that counsel were correct to abandon reliance on the passage which we have quoted from Sanghera. The Sentencing Council’s Definitive Guideline on Reduction in Sentence for a Guilty Plea, which came into effect after Sanghera, makes it clear that the maximum credit which can be given for a guilty plea is one-third. 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…”

Acting as defence counsel for the first defendant in Hoddinott and others, I did not pursue the Sanghera point after leave had been refused by the single judge. There might be better cases in which to pursue the additional discount point, something that the Court acknowledged. Another defendant also pleaded guilty at an early stage but only the single ground of totality was pursued, namely was the total sentence too long given that the defendant had the courage to plead guilty. The Court, though, was clearly keen to prevent a surge of cases, seeking a reduction in sentence on the basis that their client pleaded guilty before others and “broke ranks”.

So where do we stand? How do we treat the defendant who strides out alone and causes the dominoes to fall?

I suggest back to Plaku and others and a summary of the authorities to date where Holroyde L.J. gave the following guidance: “The guideline, at Section D, makes clear that the maximum level of reduction for a guilty plea is one-third. Matters such as early admissions and cooperation with the police investigation might enable a defendant to put forward mitigation which justifies some reduction in the sentence which would otherwise be appropriate before reduction for a guilty plea. So too might the action of a defendant in being the first of a number of co-accused to break ranks and plead guilty: see R v Hoddinott [2019] EWCA Crim 1462 at [29] and Bailey and others at [46]. In the same way, a mitigating factor might be found if a defendant pleads guilty when his co-accused are contesting issues which might be resolved in a way favourable to him. But we emphasise, mitigating factors of this or a similar nature must be considered on a fact-specific basis before the appropriate reduction for a guilty plea is determined, and cannot lead to an increase in the level of that reduction.”

Practitioners should therefore apply the following principles:

1. You cannot get greater than one-third discount: The Sentencing Council’s Definitive Guideline on Reduction in Sentence for a Guilty Plea came into force on 1 June 2017. (Sanghera was decided on 22 March 2016);
2. Causation: If the court is persuaded that not only was the defendant the first to plead guilty but “by doing so encouraged others to plead guilty”, that might be treated as a mitigating factor justifying some reduction in the sentence;
3. This will be a fact-specific decision;
4. This mitigating factor must be applied before the reduction in sentence by way of “credit” for a guilty plea is applied. (The situation is akin to the position for youth sentencing where the reduction for the mitigating factor of youth is applied before the appropriate level of reduction for a guilty plea is applied, per Holroyde L.J. in R v RB [2020] EWCA Crim 643).

Closing thoughts: a defendant who goes against the grain and causes the case to be proved without the need for a costly trial can still rely on this as additional mitigation. It usually saves time, at least with a shorter trial. Any defendant who decides to “jump first” is brave. The decision to “break ranks” is never popular. It is perhaps akin to the additional information and assistance to the prosecution given by a defendant in allegations of criminal agreements between many defendants. The information may be valuable. It may be useless, and the offer of assistance may have been a sham.

Notwithstanding the restrictive approach of the Court of Appeal following the decision of Sanghera and culminating in R v Plaku and others [2021] EWCA Crim 568, there will still be some cases where a defendant is able to attract significant additional mitigation, if it can be shown that it was this defendant who caused the other dominoes to fall.

Proving it though, may be more difficult given that most defendants will never admit that it was their co-defendant that made them plead guilty. In any complicated conspiracy, it may well be a case of inferences drawn from the timing and agreement between the Prosecution and the Defence, as to the effect of a particular defendant’s guilty plea, and whether it did cause the other dominoes to fall.

Kannan Siva