Paul Balgowan V. Her Majesty' Advocate
| Jurisdiction | Scotland |
| Judge | Lord Hardie,Lord Marnoch,Lord Reed |
| Judgment Date | 12 January 2011 |
| Neutral Citation | [2011] HCJAC 2 |
| Published date | 12 January 2011 |
| Court | High Court of Justiciary |
| Date | 12 January 2011 |
| Docket Number | XC301/10 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Reed Lord Hardie Lord Marnoch | [2011] HCJAC 2 Appeal No: XC301/10 OPINION OF THE COURT delivered by LORD MARNOCH in APPEAL AGAINST SENTENCE by PAUL BALGOWAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead; Plenderleath Runcie, Aberdeen
Respondent: Cherry Q.C.; Crown Agent
12 January 2011
[1] This is an appeal against sentence in which the only ground now insisted in is ground 2 which is in the following terms:
"2. The learned trial judge failed to take proper account of the fact that the appellant had formally tendered a plea of guilty to culpable homicide at the preliminary hearing. The basis of the plea tendered by the appellant was entirely consistent with the ultimate verdict of the jury, i.e. that the appellant stabbed the deceased. The Crown had rejected the appellant's plea to culpable homicide and it was plain to the appellant that said plea would not be accepted if he renewed it later in the proceedings. The learned trial judge failed to take into account the utilitarian value in the plea tendered at the preliminary hearing."
[2] That ground of appeal is accurate, so far as it goes, but what is not stated there is that when the restricted plea of guilty was rejected the appellant then intimated a Special Defence of Self Defence. Not only that, but at the ensuing trial for murder he was allowed to withdraw that Special Defence and substitute a Special Defence of Incrimination, which latter defence was thereafter persisted in throughout the trial.
[3] It is, we think, reasonably well settled that the objective of the statutory provisions relied on by the appellant, namely Section 196(1) of the Criminal Procedure (Scotland) Act 1995, as amended, was no more nor less than utilitarian in the sense that by encouraging pleas of guilty it was hoped that considerable amounts of public time and expense would be saved as well as sparing witnesses the trouble, expense and, on occasion, distress of attending court and giving evidence. Although reference has also been made, in this context, to the possible importance of contrition, that has always been a relevant consideration for a sentencing judge and was plainly not the reason for the legislation. Insofar, therefore, as the provisions in question are founded in expediency it is hardly surprising if they do not lend themselves easily to legal analysis or, for that matter, comparative justice. Nonetheless, the working out of these provisions has been left to the judiciary rather than the legislature.
[4] In the earlier decisions of the court on this matter, particularly Du Plooy v HM Advocate 2003 SCCR 640, guidance was given as to how Section 196(1) should be applied in the ordinary situation where the plea in question is accepted. However, the next step was to examine the application of the Section, if any, to the situation where a restricted plea is tendered and rejected and that, indeed, was, in part, the subject matter of the leading case of Spence v HM Advocate 2007 SCCR 592.
[5] At this stage it is appropriate to set out in full Section 196(1) since much turns on its particular structure and wording:-
"In determining what sentence to pass on,...
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