
GREG HEROLD-HOWES
What can you do if you are guilty of an offence and have decided to plead guilty, but the facts of the case put forward by the prosecution are more serious than what actually happened?
In criminal cases, it is not uncommon for a defendant to accept certain allegations made by the prosecution, but to deny others; for example, in response to an allegation of assault, a defendant may accept that the victim was punched, but only once, as opposed to multiple times as alleged, or deny that the victim was kicked.
In those circumstances, a defendant can enter what is known as a plea on limited factual basis. By their nature, these contradict the prosecution case and are often not accepted. However, they can offer a pragmatic way to ensure justice is delivered, whilst saving the significant costs of a trial and putting complainants/witnesses through the stresses of a trial.
What happens in these circumstances, and who makes the decision?
Article 78 of the Criminal Procedure (Jersey) Law 2018 sets out the procedure to determine facts disputed where a defendant pleads guilty. At the core of this provision is that where there is no agreement between the prosecution and defence on the factual basis, it is the Court which must determine the facts on which sentencing will proceed. Importantly, this provision applies when the disagreement relates to a material difference – a factual dispute significant enough to affect the severity or nature of the sentence imposed.
A material difference concerns facts that directly influence key sentencing considerations, such as the level of culpability, the degree of harm caused, or the presence of aggravating or mitigating factors. The parties may be invited to make representations about whether the difference is material to sentence. Where such differences arise, the court is required to resolve the dispute, typically by conducting a ‘Newton hearing’ (in simple terms a mini trial on specific issues in dispute), during which evidence is presented to establish the version of events the court finds credible.
Even when the defence and prosecution agree on a limited basis of plea, Article 78 ensures the Court retains ultimate discretion to reject any basis that does not align with the evidence or fails to meet the interests of justice. This reinforces the principle that sentencing must be based on an accurate and fair factual foundation, rather than an uncontested narrative that could distort the outcome.
This statutory framework reflects the critical role of judicial oversight in ensuring that contested or ambiguous factual bases do not compromise the fairness or transparency of sentencing decisions. Whether a basis is accepted by the prosecution may in fact be of little relevance. By clarifying the concept of a material difference and the procedure for resolving it, Article 78 ensures that the Court is the ultimate decision-maker.