On sentencing

Sentencing, it has been said, is not a science but an art. Certainly it is not a science in the sense that Karl Popper, the great philosopher of such things, would recognise – no verification of effect or reproducibility of results, despite such attention-seeking titles as “What Works”. Nor would Popper’s central idea about the nature of scientific progress, that proposed solutions cannot be proved but only, eventually, discredited, commend itself either to the liberal criminologist or the populist politician. I think art, however, is putting it a bit high; perhaps we could settle for craft, since it involves things like basic skills, a workmanlike approach and a cautious capacity for innovation. It is the last of these that brings us to Du Plooy v HMA 2003 SLT 1237.

I have heard it suggested that judges do not know what they are doing when they pass sentence. I do not mean this is suggested in a vulgar or abusive way, although I have heard that too, but by academics. Any explanation of a sentence by a judge, it is argued, is effectively a justification of the conclusion rather than an explanation of the processes that led to it. Most lawyers will be familiar with the ingredients – retribution, reform, punishment, restoration, deterrence; one almost finds oneself adding war, famine, pestilence and death. These ingredients are well known; it is getting the proportions right that separates the Delia Smiths from the Mr Pastries. The mix has varied over the years: straws in the wind suggest that we might be even now emerging from a behaviour-change culture – the medical model – back to the straightforward punitive, in particular the fine, at least for less serious offences. Be that as it may, along with these considerations we now have to include the discount for certain post-offence actings of the guilty party.

Discounts in Scotland are not exactly new, but they have always been a bit mysterious. The cynic might say that a discount is the judge’s way of saying thank you for letting him onto the first tee before lunchtime. I think the matter was better put, in conversation with the writer, by the late Sheriff Douglas Grant, who said that while an early plea per se might not justify a discount, there was nothing wrong with interpreting it as a sign of remorse and making an allowance accordingly.

The heart of the matter

However the whole question has now been examined thoroughly and systematically in Du Plooy. This is a case which all criminal practitioners should know more or less by heart, since it has a direct bearing on two vitally important matters: first, the proper representation of an accused from the very first moment that he consults, and secondly, the answer to the question “What is likely to happen to me?” It is now clear as a matter of law that provided the accused’s conduct following his committing of an offence conforms to certain standards, he is entitled to expect and receive a discount. Further, it is clear that this may not be simply in the extent of the sentence passed, but where appropriate the type, and that it is for the sentencer to state in open court what discount has been applied.

In the first place, it should be understood that Du Plooy deals with a question of statutory interpretation, in particular of section 196(1) of the Criminal Procedure (Scotland) Act 1995. Put shortly, this provides that in determining what sentence to pass on an offender who has pled guilty, a court may take into account the stage when, and the circumstances in which, the accused indicated his intention to plead. Even applying the principle of construction that in some circumstances “may” means “shall” (discussed by the Lord Justice General), this is a very general statement. The guide to requirements which Du Plooy provides is very welcome; indeed there is a suggestion by his Lordship that until now the section has not really been fulfilling its purpose. Secondly, as the legislation only indicates a general principle it is readily understandable, in the interests both of consistency in particular and of giving effect to its intention in general, why the appeal court felt it was time to flesh out the bare bones. Strictly speaking then, the appeal court is not making new law but examining the practical consequences of applying an existing statute in a proper way to prevailing circumstances.

After certain preliminary observations, the Lord Justice General turns to discuss the rationale of the section. This is clearly necessary in order that he may later identify the factors involved in applying a discount. After taking into account both English and Australian authorities, the court concludes, broadly, that the two principal elements are that public time and expense might be saved and witnesses not inconvenienced or worse and that this also allows the court to give effect to the consequences for the accused of his acceptance of guilt. It also confirmed that there was no reason why the discount principle should be restricted to solemn cases; but made it clear that an extended sentence for the purpose of public protection should not be mitigated. While it was accepted that there might be cases in which a plea was practically inevitable and that this might result in little or no discount, the court emphasised that this should not be taken too far, being difficult to determine and in any case the important utilitarian benefits accrued whatever the reason for the plea.

One point to which the court had to turn its attention was the “related matters” of, essentially, the effect of other actings, post-offence, which might be to the accused’s credit. These include things like going voluntarily to the police to confess, and possibly to provide information about the guilt of others. As the court pointed out, these are routinely taken into account by sentencers and require no statutory justification. It was suggested in argument that this should still be done, with these matters being used along with others to fix the “pre-discount” figure. The court however felt it would be difficult to draw a distinction between these sort of considerations and the tendering of the plea itself, saying: “it may be clear that the plea of guilty is one of a number of steps in the history of the accused’s conduct and they should be taken together as a whole”.

Finally, after acknowledging that at present some sentencers do state the significance they attach to a plea of guilty, the court said it was desirable that where the circumstances did call for some allowance, the sentencer should use a distinct discount and state its extent at the time. This move towards transparency, both in itself and as part of the process of ensuring that those with a legitimate interest know why a particular sentence was imposed, will be widely greeted with approval. The appeal court, however, was careful not to prescribe a fixed or “normal” discount, although it did indicate that in the general run this should not exceed one third. In a custodial sentence this discount would apply to the punitive element only, since as we have seen the public protection element should not be discountable.

The wider picture

At this stage, it might be worth suggesting an additional benefit of the discount principle, effectively another reason for encouraging early pleas. If the move back to the fine for lesser offences continues (persuasively supported in a recent Howard League lecture by HM Chief Inspector of Probation Professor Rod Morgan), this will be consistent with a greater use of individually tailored, non-custodial disposals for more serious offences, as for example with drug treatment and testing orders. Now without going so far as to say that the use of such disposals should be limited to cases in which the accused has pled guilty (as happens, it is understood, in the Glasgow drugs court), it seems clear that if a programme depends on the accused’s co-operation, it is much better to begin with a frank acknowledgment of guilt than with a reluctantly convicted denier. Whether the discount principle will turn out to be a step towards plea bargaining of a more overt kind remains to be seen.

It will be interesting to see how all of this works out. In the absence of formal research – an impossible task, one would have thought – evidence of what is happening will be anecdotal. One wonders whether early pleas will increase and if so, whether this is because of the discounts on offer. Presumably discounts will also apply in the case of letter pleas of guilty, although in that case the accused will never know how generous the court was. Certainly the appeal court said in terms that while what was stated in Du Plooy was directed to custodial sentence, it was broadly applicable to other sentences where giving a discount would make sense. Further, it will be interesting to see to what extent discounts operate to move offenders out of short custodial sentences to a large fine or other community based disposal. One might, at a guess, say not much probably, since the competing elements indicating custody may be too strong, but we shall see. Finally we will have to make sure we don’t fall into the position of the sheriff in one of the late Sheriff Dobie’s yarns, drawn to my attention by my colleague Sheriff A M Bell, who found so many mitigating factors that the court ended up making a small monetary payment to the accused.