No rule that fine instalments should not exceed a year: appeal sheriffs

There is no general rule to the effect that a fine should be of an amount that can be paid within one year, though the period involved should not be unreasonably long, the Sheriff Appeal Court has ruled.

The court issued an opinion for guidance in refusing an appeal by Ian Foster against fnes imposed for driving without a valid licence and without insurance, while he was subject to two bail orders. The justice imposed fines totalling £500, reduced from £680 for an early plea, with six penalty points, payable at the offered rate of £30 a month, which would take about 71 weeks or 17 months to pay off.

The appellant, who only held a provisional licence, had taken his mother's car and caused minor damage to the front bumper. He had initially denied having used the car. He had medical problems and received employment support allowance of £220 per fortnight. On appeal it was argued that the level of the headline fines was excessive both having regard to the offence and his means, and by virtue of the time it would take to pay them. Cases including Paterson v McGlennan (1991), a five judge decision, and Jackson v Murphy (2016) supported the proposition that when a fine was to be paid by instalments it ought to be capable of being paid within approximately one year.

Giving the opinion of the court, Sheriff Principal Mhairi Stephen QC, who sat with Sheriff Principal Duncan Murray and Appeal Sheriff Andrew Cubie, said the justice had taken relevant factors into account and the fines in themselves were not excessive.

On the length of time to pay, she considered that a sentence in Paterson – "We are of the view that the fine was excessive" – had been "invested with an authoritative status which was neither intended nor merited". It principally considered the immediate imposition of an alternative period of imprisonment in default of payment, and "sets no guideline or rule other than finding on the facts of the case that 90 weeks was excessive". Jackson, a Sheriff Appeal Court decision, had observed that each case depended on its circumstances and there could be no absolute rule, but the present court did not agree with its observation that the High Court had "indicated on a number of occasions that when a fine is to be paid by instalments it ought to be capable of being paid in about a year".

The court further disagreed with the outcome in Jackson, that the fine imposed came to little more than half the fixed penalty that might be offered for the offence. This was "undesirable and wrong in principle", and would risk motorists electing to take the chance of prosecution rather than accept the fixed penalty.

The position was correctly stated in Nicholson, Sentencing Law and Practice, as: "The length of time over which a fine is to be paid by instalments should not be unreasonably long. However, there is no general rule to the effect that a fine should be of an amount which can be paid within one year, and there are several examples where the High Court has approved, or imposed, fines which would require considerably longer than one year for payment."

As to what was unreasonably long or burdensome, the court had to exercise its judgment. "Without inhibiting the court's discretion on matters of sentence, we consider that achieving payment within... 12 to 18 months will generally provide a useful and realistic check of the level of fine to be imposed. Such a check does not have the status of a rule but it is nonetheless an approach which may assist sentencers." An appeal court should also look at the actual fines payable, rather than the headline fines chosen.

Concluding, the court commented, regarding an argument that it was "objectionable" for the justice to refer to the maximum powers available to her court, that the practice was "unobjectionable if carried out as a check or reminder". The opinion continued: "In the end of the day the court's duty is to sentence in accordance with any aggravating or mitigating circumstances relating to the offence and the offender and having regard to the offender's means as far as known to the court."

Click here to view the opinion.