Plaku & Ors v The Queen

For guilty-plea credit, the critical question is when the defendant indicated an intention to plead guilty, not when the plea was formally entered. An indication at the first stage normally attracts a one-third reduction. After that stage, the maximum is one-quarter, subject to the guideline’s specific exceptions. The indication must be unequivocal: an indication that a guilty plea is likely or probable is insufficient. Early admissions, cooperation and other mitigating features may reduce the sentence before credit is calculated, but cannot increase the guilty-plea reduction. A short delay after the first hearing will rarely justify full credit and only exceptional circumstances may make it tantamount to a first-stage plea.

Four matters were heard together. Isuf and Eduart Plaku appealed against sentences for conspiracy to supply cocaine. Simon Bourdon appealed against an extended determinate sentence for stalking and related offences. The Attorney-General referred Benjamin Smith’s sentence as unduly lenient under section 36 of the Criminal Justice Act 1988.

The appellants argued that their pleas or indications of intended pleas entitled them to one-third credit rather than one-quarter. In the Reference, the issue was whether a one-third reduction had been wrongly allowed. The central question was how the first stage of proceedings and an unequivocal indication of a guilty plea should be identified under the guideline.

The court dismissed the appeals of Isuf and Eduart Plaku and Simon Bourdon. It granted leave to refer in the Attorney-General’s Reference concerning Benjamin Smith, but made no order on the Reference. Smith’s sentence therefore remained unchanged.

1. Governing approach. Under section 73 of the Sentencing Code, formerly section 144 of the Criminal Justice Act 2003, and the Sentencing Council guideline, the court must focus on when the guilty plea was indicated. A relevant guideline must be followed under section 59 of the Sentencing Code, formerly section 125 of the Coroners and Justice Act 2009, unless that would be contrary to the interests of justice. The guideline provides a one-third reduction for an unequivocal guilty indication at the first stage, and a maximum one-quarter reduction after that stage, subject to its exceptions.
2. Unequivocal indication. An indication that a plea is likely or probable leaves open the possibility of a not guilty plea and does not qualify for full credit. The current BCM form is obligatory, and unauthorised alternatives must not be used. For either-way offences, an unequivocal guilty indication under section 17A(5) of the Magistrates’ Courts Act 1980 is treated as a guilty plea. For indictable-only offences, the defendant cannot plead in the magistrates’ court but must unequivocally indicate an intention to plead guilty in the Crown Court and then plead guilty at the first Crown Court appearance.
3. Later pleas and mitigation. It would be inconsistent with the guideline to create a routine sliding scale between one-third and one-quarter. Exceptional circumstances may make a plea notified very shortly after the first appearance tantamount to a first-stage plea, but such cases will be rare. Early admissions, cooperation, or being the first co-defendant to plead guilty may be personal mitigation considered before fixing the sentence, but cannot increase the guilty-plea reduction. A postponement of arraignment cannot preserve full credit; at most, discretion may preserve the one-quarter level.
4. Applications. The Plaku brothers had not indicated guilty pleas in the magistrates’ court or before the first PTPH and did not satisfy exception F1. Their pleas attracted one-quarter credit. Bourdon deliberately kept his options open in the hope of pleading to fewer offences, so one-quarter was correct. Smith’s indication was at most that he was likely to plead guilty, so the recorder erred in principle by allowing one-third. The error did not make the sentence unduly lenient, whether considered alone or cumulatively with the other sentencing features.

• Court of Appeal (Criminal Division): dismissed the appeals of Isuf and Eduart Plaku and Simon Bourdon. Leave was granted in the Reference concerning Benjamin Smith, but no order was made.
• Crown Court: sentences had been imposed by HHJ Evans, HHJ Pugh and Mr Recorder Benson QC.