News In Focus
18 May 2005
No minimum sentence for drug trafficker
If a drug trafficker persuades the court that the special sentencing provisions requiring a minimum of seven years in prison should not apply, the court must select a sentence in the ordinary way and there is no minimum it must impose, a High Court judge has ruled.
Lord Macfadyen was considering sentence for 22 year old Christopher McGale, who pleaded guilty to a third separate conviction of trafficking in class A drugs. In such a case the Criminal Procedure (Scotland) Act 1995, section 205B requires a sentence of at least seven years, unless the court "is of the opinion that there are specific circumstances which - (a) relate to any of the offences or to the offender; and (b) would make that sentence unjust".
A commentary on the Act in the Renton & Brown legislation service suggests that a person in McGale's position can never be sentenced to less than 80% of the seven year term. But Crown and defence counsel were agreed before Lord Macfadyen that that view was wrong.
The judge accepted that position, saying: "It should be noted that if the court is of opinion that these conditions are satisfied it is prohibited from passing the sentence otherwise required by subsection (2), but is given no other guidance as to the sentence it should impose. In that situation, the court must approach the selection of sentence in the ordinary way, unaffected by section 205B(2)."
He also noted, disapproving a further suggestion in the text, that there was nothing in the section to suggest that it applied only after trial. "There is no difficulty... in taking account under section 196(1) of the stage at which and circumstances in which the accused's intention to plead guilty was indicated. The discount is not limited to 20%. Nor is there any difficulty in making appropriate allowance under section 210 for time spent on remand." Sentence was continued for a social enquiry report.
The court's decision can be read at http://www.scotcourts.gov.uk/opinions/MCF0804.html .