Isuf Plaku v The Queen
| Jurisdiction | England & Wales |
| Judge | Lord Justice Holroyde: |
| Judgment Date | 23 April 2021 |
| Neutral Citation | [2021] EWCA Crim 568 |
| Date | 23 April 2021 |
| Docket Number | Case No: 202000623 A2; 20200624 A2; 202001162 A4; 202100096 A3 |
| Court | Court of Appeal (Criminal Division) |
And in the Matter of a Reference by her Majesty's Attorney-General pursuant to section 36 of the Criminal Justice Act 1988
[2021] EWCA Crim 568
Lord Justice Holroyde
Mrs Justice Cheema Grubb DBE
and
Mr Justice Bourne
Case No: 202000623 A2; 20200624 A2; 202001162 A4; 202100096 A3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
HHJ Evans, HHJ Pugh, Mr Rec Benson QC
Luton T20187259. Luton T20190517, Cambridge T20207205
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Charles Royle (instructed by Saunders Solicitors) for Isuf Plaku and Eduart Plaku
Mr Peter Spary for Simon Bourdon
Mr Mark Shelley for Benjamin Smith
Mr Tom Little QC (instructed by Crown Prosecution Service, Appeals and Review Unit) for the Respondent to the appeals and appearing on behalf of HM Attorney-General in the Reference
Hearing dates: 30th March 2021
Approved Judgment
When sentencing an offender who has pleaded guilty, section 73 of the Sentencing Code created by Sentencing Act 2020 (formerly section 144 of Criminal Justice Act 2003) requires a court to take into account
“(a) the stage in the proceedings for the offence at which the offender indicated the intention to plead guilty, and
(b) the circumstances in which the indication was given.”
The Sentencing Council's definitive guideline on “Reduction in sentence for a guilty plea” (“the guideline”) sets out the principles a court should follow in reducing the punitive aspects of a sentence by reason of a guilty plea.
These cases have been listed for hearing together because they all raise issues as to the correct approach to determining the appropriate reduction. Isuf and Eduart Plaku, who admitted conspiracy to supply class A controlled drugs and received long prison sentences, complain that they should have had “credit in the order of 33 per cent” for their guilty pleas, instead of the 25 per cent reduction which the sentencing judge allowed. Simon Bourdon, who admitted stalking and related offences and received an extended determinate sentence (“EDS”), complains that he should have received credit of 30 per cent rather than 25 per cent. Benjamin Smith admitted aggravated burglary and other offences and received an EDS. Her Majesty's Solicitor General believes the sentence to have been unduly lenient, in part because credit of one-third was given when the offender was not entitled to it, and applies pursuant to section 36 of Criminal Justice Act 1988 for leave to refer the case to this court so that the sentencing may be reviewed.
We are grateful to all the advocates for their written and oral submissions, and in particular to Mr Little QC, who appears for the respondent in the appeals and on behalf of the Solicitor General in the Reference, and who has therefore assisted the court with submissions both as to issues of principle and in relation to each of the cases. We shall consider first the issues of general principle, and then turn to the individual cases.
The guideline, which has been in effect since 1 June 2017, makes clear that its purpose is to encourage those who are going to plead guilty to do so as early in the court process as possible. The reasons why that encouragement is given are set out, in section B of the guideline, in the following key principles:
“Although a guilty person is entitled not to admit the offence and to put the prosecution to proof of its case, an acceptance of guilt:
1. normally reduces the impact of the crime upon victims;
2. saves victims and witnesses from having to testify; and
3. is in the public interest in that it saves public time and money on investigations and trials.
A guilty plea produces greater benefits the earlier the plea is indicated. In order to maximise the above benefits and to provide an incentive to those who are guilty to indicate a guilty plea as early as possible, this guideline makes a clear distinction between a reduction in the sentence available at the first stage of the proceedings and a reduction in the sentence available at a later stage of the proceedings.
The purpose of reducing the sentence for a guilty plea is to yield the benefits described above. The guilty plea should be considered by the court to be independent of the offender's personal mitigation.”
It appears, from the submissions made in the present cases, that there is still some misunderstanding of the guideline. It is therefore important to emphasise three points. First, by section 59 of the Sentencing Code (formerly section 125 of Coroners and Justice Act 2009), a court must follow any relevant sentencing guideline unless satisfied that it would be contrary to the interests of justice to do so. Secondly, the guideline, like section 73 of the Sentencing Code, focuses on the time when the guilty plea is indicated, not when it is entered. Thirdly, a clear distinction is deliberately drawn between the reduction in sentence available at the first stage of proceedings and the reduction available at any later stage. That distinction is reinforced in section D of the guideline which, so far as is material for present purposes, states:
“ D. Determining the level of reduction
The maximum level of reduction in sentence for a guilty plea is one-third
D1. Plea indicated at the first stage of the proceedings
Where a guilty plea is indicated at the first stage of proceedings a reduction of one-third should be made (subject to the exceptions in section F). The first stage will normally be the first hearing at which a plea or indication of plea is sought and recorded by the court.
D2. Plea indicated after the first stage of proceedings – maximum one quarter – sliding scale of reduction thereafter
After the first stage of the proceedings the maximum level of reduction is one-quarter (subject to the exceptions in section F).
The reduction should be decreased from one-quarter to a maximum of one-tenth on the first day of trial having regard to the time when the guilty plea is first indicated to the court relative to the progress of the case and the trial date (subject to the exceptions in section F). The reduction should normally be decreased further, even to zero, if the guilty plea is entered during the course of the trial.” [emphasis as in the guideline itself]
The section F exceptions referred to in that quotation cover a number of situations. The application of any of those exceptions in a particular case will of course be a fact-specific decision, and a court making that decision will be careful not to go beyond the limited terms of the exception. Fairness to all defendants, in all courts, requires that the exceptions should not be extended beyond their proper scope.
A court will also keep in mind the practical difficulties of defendants accessing legal advice during the COVID-19 emergency, a point noted by the Sentencing Council in a statement published in June 2020 concerning the application of well-established sentencing principles during the emergency.
Exception F1 makes provision for cases in which the accused needs further information, assistance or advice before indicating his plea. It states that a reduction of one-third should still be made 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 than was done.”
Exception F1 goes on to distinguish, in this regard, between
“… cases in which it is necessary to receive advice and/or have sight of evidence in order to determine whether the defendant is in fact and law guilty of the offence(s) charged, and cases in which a defendant merely delays guilty plea(s) in order to assess the strength of the prosecution evidence and the prospects of conviction or acquittal.”
We emphasise the distinction drawn in the latter part of that quotation. Both the proper application of the guideline, and fairness to those who do indicate a guilty plea at the first stage of the proceedings, demand that the distinction be observed. By way of example, a defendant who knows that he is in fact and law guilty of the offence charged, or can be advised to that effect on the basis of the prosecution case against him, is of course entitled to plead not guilty and to challenge the admissibility of the evidence by which the prosecution seek to prove his guilt. He is entitled to plead not guilty and hope that his representatives will be able to persuade the prosecution to accept a guilty plea to a different, less serious offence. But if the admissibility issue is resolved against him, or the prosecution decline to accept any lesser plea, and the defendant then changes his plea, he cannot expect to be given credit for his guilty plea as if it had been entered at a much earlier stage of the proceedings. In such circumstances, the benefits of a guilty plea, identified in section B of the guideline, have not accrued, or have accrued to only a limited extent.
The issues raised by the present cases make it necessary to focus upon the meaning of “the first stage of the proceedings”. Although we are principally concerned with cases in which the defendant is charged with an indictable-only offence, and therefore must be sent for trial to the Crown Court, we consider the phrase also in the context of either-way offences, which may either be heard by a magistrates' court or be sent to the Crown Court. Appended to...
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