Court has discretion to require evidence on mitigation: appeal judges
A sentencing court does not have to accept a defence narrative of fact in the absence of direct contradiction by the Crown, but has power to require evidence when, in the exercise of its discretion, it considers proof on mitigation to be necessary in order for the sentencing process to take place on a fair and proper basis, appeal judges ruled yesterday.
Lord Justice Clerk Carloway and Lord Malcolm were hearing an appeal by Scott Ross against a one year prison sentence for having a knife, with 23 weeks for assaulting a police officer.
The offence had occurred following a disturbance at a block of flats to which the police had been called. While they were at the flat of a resident who was complaining about her downstairs neighbour, the accused and others had come to the door. The accused's knife was spotted and recovered but the accused succeeded in getting away. Evidence in relation to the knife had been led because of a challenge to the legality of a search of the accused. In mitigation it was said that the knife had been taken to disarm the neighbour when the accused and his companions entered the block. The Crown neither agreed nor contradicted this statement; the sheriff was not prepared to accept it as the accused had been concealing the knife, and required evidence in mitigation, following which he rejected the account given.
The accused argued that his plea of guilty, tendered following the ruling on admissibility, had been on the basis of a limited narrative following discussions with the Crown. The sheriff had erred in looking behind the plea and the explanation given, and the evidence heard in mitigation should have been disregarded. There would be significant practical difficulties were the court to insist on proofs in mitigation on matters with which the Crown “took no issue”.
Speaking for the court, Lord Carloway said that while in the ordinary case, a sheriff would normally proceed on the basis of statements of fact in a plea in mitigation which were not manifestly absurd, did not contradict the plea of guilty or the Crown narrative of fact, and which were not disputed by the Crown, the sheriff was not bound to do so in every situation. "If the circumstances justify such a course in order to sentence on the basis of accurate fact, it is open to the court, as a matter for its discretion, to advise the defence that the court is not prepared to accept what has been said in the absence of evidence in its support", he stated. Here the sheriff had good reason for questioning the explanation and had given adequate reasons for rejecting the accused's account.