Credit for a Guilty Plea: Can I still get maximum credit if I do not say I am guilty in the magistrates’ court? Consideration of the Sentencing Guidelines and authority of R. v Kabir

This article was written by Sophie Drake

Introduction   

A Court of Appeal decision earlier this year has clarified that the maximum credit for a guilty plea (33%) will not normally be preserved for an offender even where the prosecution’s evidence is incomplete or confusing.  

The rationale for a sentencing judge to award credit is plain: defendants are incentivised to plead guilty as early as possible to lead to swifter justice for victims, less inconvenience to witnesses, and very considerable savings to the public purse.   

On 1 December 2020, the Sentencing Code came into effect in England and Wales, consolidating existing sentencing procedure law by the enactment of the Sentencing Act 2020.   

The court must follow any relevant sentencing guidelines and apply a reduction in sentence for a guilty plea dependent on the stage in proceedings reached.  

The Sentencing Council for England and Wales was set up in April 2010 to promote greater transparency and consistency in sentencing. It is an independent, non-departmental public body that issues guidelines on sentencing, which the courts must follow unless it is in the interests of justice not to do so. The Sentencing Council’s guideline for a guilty plea sets out a five-stage approach:  

Stage 1: Determine the appropriate sentence for the offence(s) in accordance with any offence specific sentencing guideline.  

Stage 2: Determine the level of reduction for a guilty plea in accordance with this guideline.  

Stage 3: State the amount of that reduction.  

Stage 4: Apply the reduction to the appropriate sentence.  

Stage 5: Follow any further steps in the offence-specific guideline to determine the final sentence.  

If the offender pleads guilty, the sentence should be reduced as follows:  

• At the first court hearing: by a maximum of one-third;  

• After the first stage: by a maximum of a one-quarter and on a sliding scale of reduction thereafter; and  

• After the trial has begun: by a maximum of one-tenth.  

There is a clear distinction between the reduction in sentence available at the first stage of the proceedings (33%) and the reduction available at later stages (25% and lower; and an offender may not receive any reduction in sentence for pleading guilty once a trial is underway).  

This will be the case unless, on the facts, there is a sufficiently good reason:  

Where the sentencing 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, a reduction of one-third should still be made.  

The case of Kabir concerned the circumstances in which a defendant will benefit from the maximum one-third reduction in sentence.   

Background  

Mr Kabir faced three counts relating to controlling and coercive behaviour against an ex-partner. By the time of his first magistrates’ court hearing, the CPS had not served all its evidence; in particular, only a (confusing) summary of the complainant’s evidence had been served. A note from Mr Kabir’s pre-hearing conference (privilege was waived during the appeal) recorded the following: “agree that there is likely to be some form of guilty plea.” However, he didn’t indicate a guilty plea during the hearing. The case was sent to the Crown Court.  

Defence counsel subsequently recorded on the court’s Digital Case System: “we feel optimistic that this case can be resolved with the basis of plea, but it must be written in response of the defendant having seen the actual footage/read the full transcript.”   

The CPS served the complainant’s evidence some six weeks later and the Crown Court plea and trial preparation hearing was effective.   

Mr Kabir pleaded guilty on a basis to a count alleging controlling or coercive behaviour in an intimate or family relationship that had a serious effect, in that it had caused his ex-partner to fear, on at least two occasions, that violence would be used against her. He pleaded not guilty to two lesser/alternative counts that were not pursued to trial.   

Although the basis of plea was never fully agreed, the parties agreed a schedule of admitted allegations which included a number of instances of violence over a prolonged period.   

Sentence  

The appellant was sentenced to 27 months' imprisonment, which included 25% reduction for his guilty plea.  

The defence advocate had sought to argue Mr Kabir should receive maximum credit (33%) as he had entered his guilty plea at the first realistic opportunity, which was the Crown Court, because the evidence was unavailable earlier.  

Appeal   

In giving the judgment of the court, Mrs Justice Cheema-Grubb confirmed that partial service or an unclear prosecution summary of evidence will not normally operate to defer the “first stage” to some later point in the proceedings.   

Mrs Justice Cheema-Grubb recalled the approach taken by Holroyde LJ (Vice-President) in R v Plaku & Others [2021] EWCA Crim 568, which affirmed the “clear distinction” between the reduction in sentence available at the first stage of proceedings and the reduction available at later stages and observed that “fairness to all defendants in all courts requires exceptions should not be extended beyond their proper scope.” [40]   

This serves as a reminder to judges and lawyers that even if at the first stage of proceedings the CPS’s served evidence is incomplete or confusing, this will not by itself be a sufficient exception under the guideline to preserve maximum credit. As the court observed (and which we know from experience to be true), it is “frequently the case” that the full extent of the prosecution’s case is not available to the defendant until after their case has been sent to the Crown Court for trial, and that:     

If the position were to become established that unless the evidence is fully provided in summary at least, at the first stage when a plea is sought from an accused, then the maximum reduction will be available at some other stage. The guideline would be undermined. Different courts would reach different conclusions as to what is sufficient to satisfy the requirement and, to a significant degree, the incentive to enter early guilty pleas would be lost. [44] (Emphasis added.)    

For Mr Kabir, the basis for the charge was entirely within his own knowledge, and despite lack of detail/precision in the police summary its particulars were easily comprehensible. The court held, therefore, that he had sufficient information available to him at the first hearing to enable him to make an informed decision as to his plea.   

Courts will therefore no longer allow unclear or incomplete evidence to preserve maximum credit if the particulars of the charges themselves are sufficiently clear and within the defendant’s own knowledge.  

Impact for indicating a basis of plea  

Helpfully, the court has confirmed (if there was doubt) that when a defendant indicates a guilty plea, they need not confirm at the same time on what basis that plea is made:  

[T]he desirability of formulating a basis of plea is not a justification for withholding an indication of a guilty plea.  A plea of guilty is an admission to the offence charged, not necessarily to all the facts the prosecution seeks to rely on.  There is no reason why an indication of a guilty plea cannot be given even if it is hoped and indeed expected that a basis of plea will assert a more limited culpability than appears in the allegation. [40]  

Thus, in cases where at the first hearing a defendant is faced with incomplete/unclear evidence but where the facts are sufficiently within their own knowledge to enable them to indicate a plea, they will not be prevented from formulating the basis of that plea at a later date having been served with all the evidence.   

https://www.bailii.org/ew/cases/EWCA/Crim/2025/411.html