Pleading Guilty

PART 1 Is it ever worth pleading guilty?

Is it ever worth pleading guilty?

Is it ever worth pleading guilty?

In most circumstances when you plead guilty, the court will 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 greater the reduction in sentence (credit) the court will award.

On these pages, you can read about what it means to plead guilty, how and when to enter a guilty plea, how reductions in sentence are awarded, how to ask for an advance indication of sentence, how to plead guilty on a particular factual basis, how to change a plea from Not Guilty to Guilty (and from Guilty to Not Guilty), whether you can appeal against conviction following a guilty plea, what is involved in Plea Bargaining, what it means to inform your legal representative that you are guilty, when will sentencing take place following a guilty plea, and what it means to be Unfit to Plead (i.e. to be unable to take part in the trial process).

What does it mean to plead guilty?

You can only be convicted of an offence in one of two ways: first, by pleading guilty; or second, by being found guilty following a trial.

Pleading guilty to an offence means that you accept you have committed that offence. Once you plead guilty you are convicted of the offence. For this reason, following a guilty plea there is no need for a trial and the court will proceed to sentence, either immediately or at a later hearing.

You should not plead guilty unless you know precisely what it is you are pleading guilty to. Some offences are technical in nature and it is important to receive legal advice before making that decision. Similarly, you may think you are guilty, when actually you have a defence available to the charge, such as self-defence.

If you do not accept that you are guilty of the offence, then you should plead Not Guilty. This means that your case will then go to trial where the prosecution will seek to prove that you are guilty.

  • Go to the sections on magistrates' court trial and Crown Court trial to know exactly what to expect during the trial process.

  • To find out whether your trial will take place in the magistrates' or Crown Court, see Which court will I go to? >>

Sometimes you may accept that you are guilty of an offence, but not accept the facts of the offence as put forward by the prosecution. When this happens you can plead guilty on a particular factual basis. For more on this go to Part 3: Basis of Plea >>

What is an indication of plea?

Except for minor offences such as speeding (where you can plead guilty by post without the need to attend court) your first court appearance will be at the magistrates' court.

Depending on the charge you face, and sometimes the complexity and seriousness of what is alleged, your case will either stay in the magistrates' court or go to the Crown Court.

  • If your case is one which can only be dealt with in the Crown Court (an indictable-only offence), a guilty plea can only be entered at the Crown Court. However, if you intend to plead guilty, you can indicate a plea of guilty at the magistrates' court. This would mean that your case would then be listed for a guilty plea (and possibly also for sentence) at the next hearing in the Crown Court.

  • If your case is one which can be heard either at the magistrates' court or the Crown Court (an either-way offence) then the magistrates' court will go through what is known as the Plea Before Venue procedure. This means that you will be asked if you intend to plead Guilty or Not Guilty. If you indicate a guilty plea, the court will then decide whether you will be sentenced in the magistrates' court or the Crown Court. If you indicate a not guilty plea, you and the court will then decide whether you will be tried in the magistrates' court or the Crown Court.

  • If your case is one which can be heard only in the magistrates' court (a summary offence), you will not go through the Plea Before Venue procedure and can plead Guilty or Not Guilty.

This means that the first appearance at the magistrates' court is your first opportunity as a defendant to either plead guilty or to indicate a plea of guilty, depending on the precise charge you face.

Go to Which court will I go to? for more information on indictable-only, either-way and summary offences, as well as how certain cases remain in the magistrates' court or proceed to the Crown Court.

How do I plead guilty?

A guilty plea must be entered by the defendant him/herself by replying "Guilty" when the charge is put.

The guilty plea must be clear and unambiguous.

For example, if you were to plead guilty to a charge of Assault Occasioning Actual Bodily Harm by saying, "Guilty, but I was only acting in self-defence", this would not be recorded as a guilty plea since you have disclosed that you believe you have a defence to the charge. Similarly, "Guilty, but I didn't mean it to happen" is an ambiguous plea (or what is often termed as an equivocal plea) and would be recorded as a plea of not guilty.

The guilty plea must also be voluntary. For information on changing your plea from Guilty to Not Guilty, go to Part 4: Changing Plea and Appeals following a Guilty Plea >>

If a defendant refuses to answer Guilty or Not Guilty to the charge, then the plea (or indication of plea) will be recorded as Not Guilty.

If a defendant lacks the mental capacity to plead guilty or not guilty, a special procedure exists. Go to the section below on Unfitness to Plead for more information.

A legal representative cannot plead guilty on behalf of a client, except where the defendant is an organisation, such as a limited company.

At a Plea Before Venue procedure (see above) there is a provision for the legal representative of a defendant to indicate a plea on their behalf where the defendant's disorderly conduct prevents them from doing this themselves.

Pleading guilty by post is available for certain minor offences, such as speeding.

When should I plead guilty?

The earlier a guilty plea/indication of a guilty plea is given, the greater the reduction in sentence, otherwise known as credit for a plea of guilty. You can read more about this in Part 2: Reduction in Sentence (Credit) for a Guilty Plea >>

The first opportunity to plead guilty or indicate a plea of guilty is the first appearance at the magistrates' court.

However, if the prosecution are unprepared and have not provided the evidence you or your legal advisers genuinely require at the first hearing to enable you to make an informed decision on your plea, it can be argued that this was not the first available opportunity for you to enter a plea.

For this reason, you could still receive full credit for a guilty plea entered at the first opportunity after the evidence was provided. Similarly, if there is some other genuine reason that prevents you from entering or indicating a guilty plea at the first appearance at the magistrates' court, this can be used as an argument at a later stage in support of full credit being granted.

It can also be argued that full credit should be given where, after the first appearance, the prosecution amend the charge to one which the defendant could not previously have pleaded guilty (or indicated a plea of guilty) to. Where it is the defendant's first opportunity to plead guilty to a charge and he/she takes that opportunity, then full credit should normally be given.

Will I be sentenced after my guilty plea?

After pleading guilty, there is no need for a trial and the next stage is sentencing. Sometimes sentencing will take place immediately and sometimes the case will be adjourned (put back) for sentencing on a later occasion. Whether or not you are sentenced immediately depends on whether the court has all the information it needs to sentence you.

Custodial Sentences & Community Orders

If the magistrates/District Judge (in the magistrates' court) or the Judge (in the Crown Court) are considering imposing a custodial sentence or a community order, a pre-sentence report must be obtained unless the Judge/magistrates consider it unnecessary to do so.

Obtaining a pre-sentence report will usually require an adjournment; this can either be a short adjournment until later the same day for a short report, or a longer adjournment for a more in-depth pre-sentence report.

You can read more about pre-sentence reports in What will happen at my sentencing hearing? >>

Less serious cases

For cases are in the lower category of seriousness, the sentence will often be imposed immediately (e.g. points on a driving licence, disqualification, a fine or a conditional discharge).

Listing cases for sentence

Often, when a guilty plea is indicated at the first opportunity at the magistrates' court, the case will be adjourned to be listed for sentence at the next hearing and, where necessary, a pre-sentence report will be ordered. In cases where a report from a psychiatrist or psychologist is required to assist the sentencing court, this is another reason why the case could be adjourned for sentence at a later date.

Where a guilty plea is entered at a later hearing (either in the magistrates' or Crown Court), the court may have been notified (and ideally should have been) that a guilty plea is going to be entered and all necessary reports prepared in advance of that hearing so that sentencing can take place.

If this has not happened:

(a) Where the case carries a potential sentence of imprisonment but custody is not inevitable there will often be an adjournment for a pre-sentence report. In this situation either the sentence will be put back until later that same day or a date will be fixed for sentence and, in the meantime, the defendant will either be remanded on bail (with or without conditions) or in custody;

(b) For cases at the higher end of the scale where custody is inevitable, sentence will often take place immediately, unless the judge considers it necessary to adjourn the case for a report (e.g. a psychiatric report);

(c) For cases at the lower end of the scale (where custody or a community sentence will not be imposed) sentencing will usually take place immediately.

Go to Sentencing for more information.

What is plea bargaining?

It is common practice for the defence to seek to minimise the impact of a criminal charge against their client by offering a guilty plea to a lesser offence.

For example, a charge of causing grievous bodily harm with intent (s.18 Offences Against the Person Act 1861) carries a maximum term of life imprisonment. The lesser offence of inflicting grievous bodily harm (s.20 Offences Against the Person Act 1861) carries a maximum term of 5 years' imprisonment. Imposing maximum terms is very are, but in real terms, the sentence for a s.18 offence will be significantly longer than the sentence for a s.20 offence. For this reason, if the defendant consents, the defence will often offer a guilty plea to a s.20 offence in place of a s.18.

It is a matter for the defendant to decide whether to offer a guilty plea to a lesser offence and for the prosecution to decide whether to accept it. The prosecution should only do so where they consider that the evidence will not realistically support a conviction for the more serious offence, or where the public interest otherwise justifies accepting a plea to a lesser charge.

For these reasons, plea bargaining is really a process of negotiation in which the defence set out the weaknesses in the evidence with a view to persuading the prosecution to change its view of the case. The benefit to the defendant can be the offer of a lesser charge and the benefit to the prosecution the avoidance of a trial which can be costly, time-consuming and may require witnesses to attend court and potentially relive traumatic events.

Consultation

Such plea bargaining negotiations have to be carried out carefully and sensitively. Victims of crime do not want to find out at the last moment that a 'deal' has been carried out behind their backs and a guilty plea has been accepted to an offence which does not begin to reflect the seriousness of what has happened to them. (For this reason, the Farquharson Guidelines impose a duty on prosecution advocates to consult where possible with victims or their families before accepting a plea to an alternative offence.)

The changing nature of criminal cases

On the other hand, the strength of the evidence in a case may sometimes change significantly even before trial. Often the process of investigating an offence continues well after the intial charge and the prosecution case will change accordingly, either growing stronger with additional evidence located against a defendant or becoming weaker where further evidence is dicovered which undermines what was once thought to be a strong case.

For example, CCTV evidence may be discovered which demonstrates that events were quite different to how witnesses described them; scientific or cell site evidence may prove that a person was not, or cannot be proved to have been, at a certain place relied upon by the prosecution; examination of social media sites and text messages on mobile phones may demonstrate that witnesses have been untruthful or unreliable in the accounts they have given, or additional independent witnesses may come forward with evidence which strengthens or weakens the prosecution case.

Approaching the prosecution

Where there are weaknesses in a case which throw doubt on a more serious charge but still support a lesser offence, this will form the basis of how the defence will approach the prosecution to offer a guilty plea to a lesser offence (if the defendant consents to such an offer being made).

In some circumstances, the prosecution might accept that a defendant can be bound over to keep the peace rather than facing a trial for the offence they were charged with.

Multiple charges

Where defendants face multiple serious charges, the defence may offer to plead guilty to some charges if others are not proceeded with, or to plead guilty to some charges and also to other lesser alternative charges. In such cases, the prosecution will have to decide if it is in the public interest to pursue all charges.

For example, a defendant who pleads guilty to a high value fraud case involving multiple victims may also face a number of low level offences of dishonesty. If the likelihood is that these lesser offences would add nothing to the overall sentence, the prosecution may take the view that it would not be in the public interest to pursue them.

On the other hand, the fact that a defendant is facing a long sentence for one offence does not mean of itself that a prosecution will not follow for another offence simply because the overall sentence is not likely to increase. For example, the fact that a defendant will face a life sentence for murder does not prevent the prosecution proceeding with a separate case of rape. Every case and combination of charges will have to be considered individually and what is in the public interest in one case may be very different from the public interest in another.

What happens if I tell my lawyer I am guilty?

If you maintain your innocence to a charge, even in the face of overwhelming evidence that suggests you are guilty, you are entitled to have a trial.

At trial you are entitled to give evidence yourself and call witnesses to support your case. Equally, you are entitled to remain silent and leave the prosecution to prove its case. See the sections on magistrates' court trial and Crown Court trial for more information on the trial process.

Does my lawyer believe me?

It does not matter what your legal representative (barrister or solicitor) thinks about you personally, what they think about the nature of the offence you are charged with, or whether they believe you are guilty or not guilty.

Many defendants believe that it matters what their lawyer thinks, as if their lawyer believing in them means they will mount a stronger defence. In fact, it makes no difference what a lawyer personally thinks about your guilt or innocence. It is the court, not the lawyer, who delivers the verdict. If you maintain that you are not guilty, your legal representative must represent you at trial to the best of their ability.

Misleading the court

Legal representatives are bound by a number of requirements of professional ethics. The most important of these is the requirement not to mislead the court. Even if a lawyer personally thinks you are guilty, but you maintain your innocence, the lawyer is not misleading the court by suggesting at trial that you are not guilty, because the lawyer is acting upon his or her client's instructions.

However, complications arise if you tell your lawyer that you are guilty, but you still want a trial. This is because the lawyer now knows (from you) that you are in fact guilty. If the lawyer now suggests to the court that you are not guilty, or calls you or any other witnesses to suggest you are not guilty, the lawyer would be misleading the court.

For this reason, if you tell your legal representative that you are guilty of the offence, and your lawyer is satisfied from what you have said that you are in fact guilty, then the lawyer will advise you that you should enter a plea of guilty. If you decide that you still want a trial despite what you have said (e.g. because you want to try your luck) it is likely that your legal representative will have to withdraw from the case. The rules of client confidentiality prevent a lawyer from informing the court of what you have told them unless you agree, but the rules of ethics also prevent a lawyer from misleading the court.

The only way a lawyer could represent a defendant at trial in this situation would be if he/she could do so by not misleading the court. In practice this would mean 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 that the lawyer could, for example, test in cross-examination the reliability of a witness's evidence (such as 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 (i.e. to suggest that the defendant was not guilty, or that it was not the defendant who the witness claims to have identified) would be to cross the ethical 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 usually take place in a criminal trial) the lawyer would have no option but to withdraw from the case.

The lawyer could not explain to the judge why he/she was withdrawing (unless the defendant consented) and the defendant would have to find alternative legal representation or continue the case by representing themselves.

What is unfitness to plead?

Some defendants lack mental capacity to enter or indicate a plea of guilty or not guilty to a charge, such as where a defendant has a mental disorder or some other impairment to mental functioning. In this situation, the court will have to decide if they are unfit to plead. Being unfit to plead is also referred to in rather archaic language as being under a disability.

Unfitness to plead in the Crown Court

In the Crown Court, the procedure is governed by the Criminal Procedure (Insanity) Act 1964, sections 4 and 4A.The test applied to decide if a defendant is unfit to plead is known as the Pritchard test (following the case of R v Pritchard (1836) 7 C&P 303; 173 ER 135) and is as follows:

Does the defendant have sufficient intellect to:

(1) understand the charge?

(2) decide whether to plead guilty or not guilty?

(3) exercise their right to challenge jurors?

(4) instruct legal representatives?

(5) follow the course of the proceedings?

(6) give evidence in their own defence?

Only if all of these questions can be answered positively can the defendant be considered fit to plead. The decision is made by the judge who will have at least two medical reports on the defendant's mental condition.

It is worth bearing in mind that the court is able to adapt its procedures to receive the evidence of vulnerable defendants and those with communication difficulties using, for example, communication aids and intermediaries. For more information on what are known as special measures for defendants, go to Witness Protection and Support >>

If the defendant is found to be unfit to plead, a trial of the facts will take place before a jury. This is different to a standard Crown Court trial because no consideration is given to the defendant's state of mind (such as belief, dishonesty or intent). In the Crown Court, the jury are not asked to return a verdict of guilty or not guilty, but rather to determine if the defendant 'did the act or made the admission charged against him as the offence'.

Following a trial of the facts in the Crown Court, where the case is proved against a defendant, the court does not proceed to sentence because there has been no conviction in the usual sense of the word. Instead, the court has limited powers available to it to deal with the defendant. These are as follows:

  • A Hospital Order;

  • A Supervision Order;

  • An Absolute Discharge.

Unfitness to plead in the magistrates' court

In the magistrates' court, there is a very limited fitness to plead procedure which applies only to offences which carry a potential sentence of imprisonment.

The procedure is governed by two pieces of legislation, section 11(1) of the Powers of Criminal Courts (Sentencing) Act 2000 and section 37(3) of the Mental Health Act 1983.

This legislation permits a magistrates' court to make a hospital order in the case of a defendant where (a) there is up-to-date medical evidence (at least two medical reports) to demonstrate that the defendant has a mental disorder 'of a nature or degree which makes it appropriate for them to be detained in a hospital for medical treatment' and (b) that, following a trial of the facts, the defendant 'did the act or made the omission charged.'


Go to Part 2 - Reduction in Sentence (Credit) for a Guilty Plea >>

More about trials and appeals >>

More about sentencing >>

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