ON THIS PAGE:
- Is it ever worth pleading guilty?
- Credit for a guilty plea
- What is a basis of plea?
- Can I plead guilty on the basis that I didn't really do it?
- What is a Newton Hearing?
- Before I plead guilty is it possible to get an advance indication of sentence?
- I have told my lawyer I am guilty. Can I still have a trial?
- Further information on pleading guilty
is it ever worth pleading guilty?
"A GUILTY PLEA MEANS THE COURT WILL IN MOST CIRCUMSTANCES AWARD A DISCOUNT ON SENTENCE"
A plea of guilty is an acceptance by the defendant that he has committed the offence(s) he is charged with. This means that following a guilty plea there is no need for a trial and the court will sentence the defendant, either immediately or at a later hearing. A guilty plea means the court will in most circumstances award a discount on sentence to reflect the fact that there has been no need for a trial and time and expense have been saved and, in particular, victims of crime and witnesses have been spared the trouble and anxiety of having to give evidence. It is for these reasons that the earlier the guilty plea the more credit the court will award.
credit for a guilty plea
"A DEFENDANT WHO PLEADS GUILTY AT THE FIRST AVAILABLE OPPORTUNITY (USUALLY MEANING THE FIRST COURT APPEARANCE) WILL NORMALLY BE GIVEN 1/3 CREDIT (I.E. ONE-THIRD OFF THE SENTENCE WHICH WOULD HAVE BEEN IMPOSED IF HE HAD BEEN FOUND GUILTY AT TRIAL)"
A defendant who pleads guilty at the first available opportunity (usually the first court appearance) will normally be given 1/3 credit (i.e. one-third off the sentence which would otherwise have been imposed if he had been found guilty at trial); a guilty plea after the case has been listed for a trial attracts up to ¼ (maximum 25% off); the later the guilty plea the less the credit awarded so the credit reduces on a sliding scale to 1/10 (10% off the sentence) for a guilty plea on the first day of trial. A guilty plea during the remainder of the trial may attract some credit but not necessarily.
In appropriate cases, an early guilty plea can make the difference between an immediate custodial sentence on the one hand and, on the other, a suspended sentence or community order. It could also make the difference between a community order or a fine being imposed.
For some offences, known as either-way offences, which can be heard at either the Magistrates' Court or the Crown Court, an early guilty plea could make the difference between the case remaining with the Magistrates (which has limited sentencing powers) or the case going to the Crown Court (where the sentencing powers are considerably greater). For more information on this see Maximum Sentences in the Crown & Magistrates' Court.
In some circumstances credit for a guilty plea will be limited. These include where mandatory minimum term sentences apply and also in life sentence murder cases. In addition, where a defendant pleads guilty but does not accept the prosecution version of events, this can result in a 'Newton Hearing' where the court decides whether to sentence on the prosecution or the defence version; a defendant who is unsuccessful at such a hearing is likely to lose some of the credit that would otherwise be available to him. See the section on Newton Hearings below for more information.
You can read more about credit for guilty pleas in the Sentencing Council’s definitive guideline in the Further Information section below.
what is A BASIS OF PLEA?
"IMAGINE YOU ARE GUILTY OF AN OFFENCE AND HAVE DECIDED TO PLEAD GUILTY, BUT THE CASE PUT FORWARD BY THE PROSECUTION IS DIFFERENT TO WHAT YOU ACCEPT ACTUALLY HAPPENED"
Imagine you are guilty of an offence and have decided to plead guilty, but the case put forward by the prosecution is more serious than what you accept actually happened.
In these circumstances, you can still plead guilty but can do so on a proposed basis (a basis of plea) which the judge and the prosecution can either accept or reject.
The purpose of the basis of plea is to remove various aggravating features of the case which would lead to a higher sentence.
If the basis of plea is accepted by the prosecution and by the judge, the sentence will proceed on the version put forward by the defence. If the basis of plea is rejected by the prosecution and the judge thinks that the version of events it puts forward is sufficiently more serious than the version put forward by the defence (so as to justify a higher sentence), then there will be a mini-trial (without a jury in the Crown Court) for the judge to decide on the facts of the case.
This type of mini-trial is called a Newton Hearing. In reaching a decision on the facts at a Newton Hearing the judge will have to be satisfied so that he/she is sure that the prosecution version is correct. If sure, the judge will then sentence on the prosecution version, but if less than sure the judge will sentence on the defendant’s version.
It is also worth bearing in mind that the judge is entitled to reject a basis of plea which he/she considers to be absurd. If the judge takes the view that the basis put forward by the defence is patently absurd then sentence will take place on the prosecution version of events without a Newton Hearing taking place. The judge is the final arbiter on whether or not a basis of plea is accepted and is entitled to reject a basis even if accepted by the prosecution, although this would be quite rare.
Basis of Plea Example 1
Stephen Holmes is charged with Assault Occasioning Actual Bodily Harm. The prosecution case is that, following a minor disagreement in the pub, the victim was punched twice in the face, then fell to the ground and was kicked three or four times in the head. The victim sustained a broken nose and facial bruising.
Stephen accepts punching the victim and causing the injuries, but denies that the victim fell over and denies that he kicked the victim to the head. He accepts he is guilty of the offence (by punching twice in the face and causing injury) and sets out his version of events on a ‘Basis of Plea’ document which is handed to the prosecution.
The prosecution do not accept this version of events. Stephen Holmes pleads guilty and the prosecution hand up the Basis of Plea to the judge. The judge takes the view that, since kicking to the head is a serious aggravating factor of an assault, there would be a material difference in the sentence passed on each different basis. For this reason the judge adjourns the case for a Newton Hearing for the prosecution to prove its version against the defendant.
Basis of Plea Example 2
Leon Walker works in a small shop and is charged with theft from his employer. The allegation is that he has been stealing money from the till. He accepts stealing £1,200 over a period of one month but the prosecution allege that he has stolen £1,500 over a period of 2 months.
Leon pleads guilty on his version of events as contained in his Basis of Plea. The prosecution do not accept this, but the judge takes the view that the difference between the version put forward by the prosecution and the version put forward by the defence will make no difference to sentence. For this reason the judge passes sentence on the defendant’s version of events and no Newton Hearing is required.
Can I plead guilty on the basis that I didn't really do it?
When a defendant enters a guilty plea to an offence it means that he accepts he is guilty of it. For this reason it is not possible to plead guilty on the basis that you did not really commit the crime. As mentioned above, a basis of plea is only available where the defendant accepts that he has committed the offence but disputes the factual basis of how the offence was committed.
Since a guilty plea means a defendant accepts committing the offence, it is not possible at the sentencing hearing for a defendant to seek to distance himself from the offence by, for example, saying "I pleaded guilty but I didn't really do it" or "I'm not guilty and only pleaded guilty because I didn't want the witness to have to give evidence." Pleading guilty is therefore a serious decision, but a defendant who accepts he is guilty and pleads guilty will be at an advantage when it comes to sentence compared with a defendant who is convicted at trial.
The Alford Plea
In the USA there is a type of guilty plea known as the Alford plea which allows defendants to plead guilty on the basis that they did not commit the crime they are charged with; as such, a defendant is pleading guilty but simultaneously asserting his innocence. This type of guilty plea was used by the defendant Michael Peterson who was charged with murdering his wife in North Carolina in 2001, a case which is the subject of the Beyond Reasonable Doubt podcast (BBC Radio 5 live) and The Staircase documentary (Netflix).
The criminal law in England & Wales does not have any equivalent to the Alford plea. This means that you are either guilty or not guilty and there is no middle ground.
what is a Newton Hearing?
"THE PURPOSE OF THE HEARING IS TO ALLOW THE JUDGE TO HEAR EVIDENCE AND DECIDE WHICH VERSION OF EVENTS TO SENTENCE ON"
A Newton Hearing is only required where the judge considers that the version of events put forward by the prosecution is sufficiently more serious than the version put forward by the defence so as to justify a higher sentence. The purpose of the hearing is to allow the judge to hear evidence and decide which version of events to sentence on.
The judge will only sentence on the prosecution version where the prosecution can prove its version so that the judge is sure of it. If the judge is less than sure, sentence will take place on the defendant's version. The judge will decide if a Newton Hearing is required.
At the Newton hearing the prosecution will call the evidence it relies upon to prove the issues in dispute and the defendant can give evidence and call any further evidence in support of his/her version of events. Newton hearings can take place both in the Crown Court and the Magistrates' Court, but In the Crown Court a Newton hearing is heard by a judge alone without a jury.
Beware - Loss of Credit
As mentioned above, a defendant who pleads guilty is entitled to up to a third off any sentence, dependent upon how early the guilty plea was entered. However, if a Newton Hearing is held and the judge finds the prosecution version proved, the defendant is likely to lose some of the credit that would otherwise be given for the guilty plea. Under the Reduction in Sentence for a Guilty Plea guideline the reduction in sentence that would have been available at the stage the guilty plea was indicated should be halved.
If the judge is not sure that the prosecution version is correct (and therefore finds in favour of the defendant) there will be no loss of credit.
You can read more about Newton Hearings in the Further Information section just below.
BEFORE I PLEAD GUILTY Is it possible to get an Advance indication of sentence?
Yes. There are procedures available for this in both the Crown Court and the Magistrates' Court. You can read our guide to Advance Sentence Indications.
I have told my lawyer I am guilty. Can I still have a trial?
Criminal lawyers (Barristers and Solicitors) are under a duty not to knowingly or recklessly mislead the court. If a defendant informs his lawyer that he is guilty, it will be very difficult for the lawyer to represent the client at a trial without misleading the court. As soon as the lawyer suggested to the court that his client was not guilty, this would be a misleading statement. Similarly, if the lawyer had been told by his client that he was guilty, calling the client to give evidence of his innocence to the charge would mean that he was knowingly involved in misleading the court.
"IF A DEFENDANT INFORMS HIS LAWYER THAT HE IS GUILTY, IT WILL BE VERY DIFFICULT FOR THE LAWYER TO REPRESENT THE CLIENT AT A TRIAL"
The only way a lawyer could represent a defendant in this situation would by by not calling the defendant (or any witness that positively suggested the defendant was not guilty) and simply running the trial by testing the evidence, being careful not to suggest at any stage that the defendant was not guilty.
This means the lawyer could test in cross-examination the reliability of a witness's evidence (for example dealing with poor lighting conditions, a fleeting glance or other obstructions in a visual identification case) and could go on to suggest to the court that the prosecution had failed to establish that the witness's identification was reliable. However, to go further and advance a positive case would be to cross the line and mislead the court. Clearly to run a trial in such circumstances is an extremely difficult task and if a defendant who had told his lawyer he was guilty were to insist, for example, that he wanted to give evidence, call witnesses, or ensure that his lawyer clearly suggested that he was not guilty (all matters which take place in a usual criminal trial) the lawyer would have no option but to withdraw from the case. Due to the lawyer's duty of confidentiality to his or her client, the reason for withdrawing could not be revealed to the judge.
Further Information on pleading guilty
You can find additional information by clicking on the links below:
The Sentencing Council has published a Reduction in Sentence for a Guilty Plea Guideline (into force 1st June 2017).
Further information on bases of plea and Newton Hearings can be found in Criminal Practice Direction VII Sentencing (at paragraph B.6 onwards).