Discount percentage must apply to all elements of sentence

Penalty points or disqualification from driving must be discounted in the same way as a fine, following an early plea of guilty in road traffic cases, the Criminal Appeal Court has ruled.

Lord Justice General Carloway, Lord Drummond Young and Lady Clark of Calton were giving the court's decision in two appeals referred to the court by the Sheriff Appeal Court because they raised this question of principle.

An earlier decision, Gemmell v HM Advocate (2012), had laid down that s 196 of the Criminal Procedure (Scotland) Act 1995, which requires a sentencing court to take into account the stage at which an intention to plead guilty was notified, applied to the whole sentence. However the court was told that sheriffs and justices of the peace were having difficulty applying the ruling, because the appropriate disqualification or penalty points were the minimum available, or points were indivisible into whole numbers, or it was difficult to achieve comparative justice due to the narrow range of points that could be imposed.

In the first case appealed, Cameron Wilson, who already had five points on his licence, had a £250 speeding fine at Aberdeen JP Court reduced to £200 for an early plea, but four penalty points were not reduced because the justice considered he should receive more than the minimum and she could not reduce them by 0.8 points. In the second, from Glasgow Sheriff Court, Stephen Gallagher had a £400 fine for driving with three times the alcohol limit reduced by 25% for an early plea, but the sheriff considered the circumstances, and the public interest, did not justify a similar discount in an 18 month disqualification.

Delivering the opinion of the court, Lord Carloway said the principles in Gemmell were clear, and if sentencers were having difficulty applying them, “it is important that they be restated in unequivocal terms in the specific context of road traffic contraventions”.

On the principal question referred, “Other than in exceptional cases, such as where statutory minimums apply or a discount is otherwise impracticable, the rate of discount should be uniform across all parts of the sentence. Any differential would require to be fully reasoned in the event of a challenge.” A reference in Gemmell to disaggregating “individual elements” from the starting figure related to factors relevant to sentence, rather than different parts of a sentence.

He added: “Comparative justice only arises where two or more accused are convicted of the same charge. There may be cases where the application of a discount to one accused, who has pled guilty early, will result in an imbalance in relation to another accused who has not. This may occur in cases where one accused is a repeat offender and another is not. This is the effect of any penalty discounting system, whether applicable to specific road traffic offences or otherwise.”

With penalty points, factions should be rounded up or down to achieve a practical result. The 0.8 points in Wilson's case “could easily be rounded up to one point”.

A “discriminating” approach to discount was therefore not normally legitimate. It was not appropriate to take account of public safety; “the utilitarian value of the plea” was the only matter to be taken into account in deciding whether and to what extent to allow a discount.

Lord Carloway also stated, the point having been raised, that it was for the Sheriff Appeal Court to decide whether the case raised a “complex or novel” point such as to justify a reference to the High Court. The High Court could not normally refuse to entertain a reference. In the present case “The court has no difficulty in understanding how the test for a reference was met”.

The court remitted the appeals to the Sheriff Appeal Court to consider in light of the answers given.

Click here to view the opinion in Wilson (the lead decision) and here for the opinion in Gallagher.