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Terms and sentences

20 June 05

Latest criminal cases, including sentencing discounts; road traffic; admissibility; corroboration

by Andrew Lothian

In pursuit of an ideal

Anecdotally, it seems that the first 18 appeals in court one day not so long ago were concerned with the discount on offer in Du Plooy terms. As this would represent an 18-fold increase in the work of the appeal court it surely cannot be true, although my source would seem an impeccable one. However there is an underlying theme to all this, which is the belief that somewhere, for every crime, the ideal sentence exists. What has happened is that in conformity with this, regularity, parity and conformity are pursued at all costs, and rather than judges of first instance being afforded a general discretion, which will admittedly result in sentences in similar circumstances which do differ, but not materially, the appeal court is inclined to adopt a stricter, perhaps more mathematical approach. Accordingly it now seems to be the law that, while base sentences may to an extent vary with circumstances, the rate of discount should not. Personally I think that it might have been better to have allowed a situation in which there were irregularities, provided the particular result was not wildly out of alignment with the generality.

Discount difficulties

Although it was some time ago now, there was an era in which the two judges in one sheriff court dealt with drunk driving in different ways, with one increasing the period of disqualification along with the level of drink, while the other reflected this in larger fines. It was a situation with which the appeal court seemed happy to live. In that spirit we turn to Stewart v Griffiths 2005 GWD 11-172. This seems to establish that in road traffic cases as far as penalty points go, there should be no discount for an early plea, these being in the nature of a public warning. (It does appear, however, from Barrie v Williams 2005 GWD 11-191 that a period of disqualification, where appropriate, can be discounted.) However the appeal court did reduce a fine of £450 to one of £350. The sheriff had given no discount, as the accused pled guilty at the trial diet. It appeared however that as a result of discussions the witnesses had been countermanded and for this public service a discount of two ninths was allowed. That being about as late as one could plead, this would seem to be the least discount possible.

Discount difficulties are approached again in the solemn case of Paterson v HMA 2005 GWD 11-173, where the crime involved was rape and there were difficulties about the intellectual capacities of both accused and victim. It is not necessary to rehearse the facts to be able to point out that the court once again emphasised the importance of timeous, decisive and unequivocal activity on the part of the defence if the maximum discount is to be available.

The next reported case, Clark v HMA 2005 GWD 11-174, is of interest particularly because the grounds argued on appeal appear to have gone rather further than the reasons submitted to the appeal court, and thus available for comment by the original judge, thus confirming a widely held belief that the court of appeal is more properly a court of review. In Adamson v HMA 2005 GWD 12-204, the appeal court held that the judge of first instance had got both the base rate and the discount rate wrong and instead of a sentence of six years (which was eight discounted by 25%), imposed a sentence of four years, being a base sentence of six years discounted by one third. There are also in this issue of the Digest a couple of driving discount cases, Henderson v Lang (192) and Barrie v Williamson.

Differing approaches

Still on road traffic, but with a different point in mind, Falconer v Service 2005 GWD 12-196 serves as a reminder than when the charge is one of speeding, no matter how fast, this is not the same as a charge of dangerous driving and should not be treated by the court for sentencing purposes as such. Another case on disqualification, Peter Morris v PF Paisley, unreported at the time of writing, was decided on 20 April 2005. In it the sheriff imposed two concurrent periods of 12 months’ disqualification for the reason that he was not able to impose two consecutive periods of six months’ disqualification. The appeal court held that this approach was not open to the sheriff and imposed two concurrent periods of six months’ disqualification.

Incidentally on the same date the court, in the case of Herkes v PF Dundee, allowed an appeal against the imposition of a period of two months’ imprisonment in respect of a breach of the peace at Ninewells Hospital. The court’s reason for this was that imprisonment, for a first offender with a good work record, was not the only disposal possible. A fine of £500, discounted from £600 for an early plea, was substituted. One does not want to go on about the discount, but the plea of guilty was at the first calling and might, arguably, have attracted a larger discount than one sixth.

Another interesting case about sentencing is Stevenson v Donaldson 2005 GWD 12-210, in which a person who was in breach of a probation order with a condition of community service received a sentence of 30 days’ imprisonment, the judge apparently taking the view that, as the Act says, community service is an alternative to custody. However the appeal court differed and imposed another period of probation with a requirement for more hours of unpaid work. It seems that the penalty for not complying was more to comply with, but it has to be borne in mind that people’s circumstances do change, sometimes quite drastically, while the legal process is carried on, sometimes slowly and at length.

Matters in evidence

Turning to GWD issue 13 for 2005, there are a couple of cases worth notice. Henderson v HMA (222) is about a phone tap, not proved to have been correctly authorised, which led to critical evidence being admitted by the trial judge on the basis that it would be justified by later evidence, which in the event it was not. The case looks back to Lawrie v Muir 1950 SLT 37 for a consideration of common law fairness, and also follows McGibbon v HMA 2004 SLT 588. The essential matter for present purposes is that the appeal court reaffirmed that not all breaches of the law impact on the admissibility of evidence in a criminal trial. P v Williams (223) is about the difficulty of corroboration when vulnerable witnesses are testifying and of the need for forethought about this. What seems to have gone wrong in this case is that the same person who spoke to being assaulted also was the sole link describing the appellant in such as way as to admit identification by description from the “corroborating” witnesses who, because they were vulnerable, did not see the appellant in court as they were behind a screen.

Clients of the system

One should not, of course, be commenting here on sentencing policy, but since the idea is an English one and thus foreign, it seems worthwhile noting that the recent proposals about a high, not to say degrading, profile for community service offenders seem to fall into the trap diagnosed by Baroness Stern in her 2004 Howard League lecture, namely the consumerist error of mis-identifying the clients of the criminal justice system (sic) as the victims rather than the offenders. Once this mistake takes place, one searches in vain for a coherent philosophy of sentencing or even for consistency in approach. There are very few political slogans with which one can take issue – who, for instance would vote for a party which proposed more dangerous communities and less safe streets? – but the practicalities are another matter and as Abraham Lincoln did not say, although Bob Dylan might have, you really cannot please all of the people all of the time.