Health & Safety

Today, the Sentencing Council for England and Wales has published new guidance on sentencing offenders who plead guilty.

The new guidelines come into force on 1 June 2017 and can be accessed here:

In England and Wales, in accordance with s.144 of the Criminal Justice Act 2003, in determining what sentence to pass on an offender who has pled guilty to an offence, a court must take into account the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty and the circumstances in which this indication was given.

There is an almost identical provision to be found at s.196 of the Criminal Procedure (Scotland) Act 1995 in relation to Scottish proceedings.

The rationale for allowing “sentence discounting” is that early guilty pleas save court time, avoid witness distress and ultimately benefit the public purse.

Sentence discounting is not a new concept. It is rooted in statute, but its application by the courts both north and south of the border has raised issues in relation to what the court should take into consideration when dealing with an offender who pleads guilty and what discount should apply.

The purpose of the new guideline, which is applicable to England and Wales only, is to encourage early guilty pleas by making clear the stages in proceedings at which an offender can receive the various levels of discount available. It sets out that the maximum sentence discount of one-third is available only if the offender pleads guilty at the first court hearing. Offenders who tender guilty pleas after the first hearing are entitled to maximum sentence discount of one-quarter which will reduce on a sliding scale to a maximum of one-tenth if tendered on the first day of trial.

There are however some noted exceptions which include circumstances where it would be unreasonable to expect the offender to indicate a guilty plea sooner than was done. In such circumstances the maximum discount of one-third may still be applied, even if the offender did not plead guilty at the first opportunity. This may cover situations where further information, evidence, assistance or advice was required before a plea could be indicated. It is thought that this may cover more complicated criminal regulatory cases, including prosecutions under the Health & Safety at Work etc. Act 1974.

This is a welcome clarification of the law on sentence discounting in England and Wales and it will be interesting to see how this is applied come June this year. North of the border, the Scottish Sentencing Council is still working on drafting sentencing guidelines. Sheriffs already frequently apply an early plea discount already but this is with much more discretion and flexibility.

Clearly, early legal advice in any near miss or incident is very important in order to mitigate the impact of any sentence. If you have any questions, comments or concerns please get in touch with us or your usual Brodies health & safety contact.

Malcolm Mackay

Malcolm Mackay

Malcolm is a partner in the Health and Safety Team. He advises clients on Health and Safety and Regulatory matters in the energy sector of the North Sea, North East Atlantic and abroad. As Scottish oil workers travel to far flung and sometimes hostile foreign jurisdictions, keeping on the right side of legal obligations in relation to their health, safety and welfare is an issue for modern employers.
Malcolm Mackay