Wilson v Shanks
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Drummond Young,Lady Clark of Calton |
| Judgment Date | 04 September 2018 |
| Neutral Citation | [2018] HCJAC 50 |
| Court | High Court of Justiciary |
| Docket Number | No 1 |
| Date | 04 September 2018 |
[2018] HCJAC 50
Lord Justice-General (Carloway), Lord Drummond Young and Lady Clark of Calton
Gemmell v HM Advocate [2011] HCJAC 129; 2012 JC 223; 2012 SLT 484; 2012 SCCR 176; 2012 SCL 385
Harkin v Brown [2012] HCJAC 100; 2012 SLT 1071; 2012 SCCR 617; 2012 SCL 923
Herd v HM Advocate [2017] HCJAC 80; 2017 SCCR 535; 2017 GWD 37–575
Horribine v Thomson [2008] HCJAC 21; 2008 JC 306; 2008 SLT 503; 2008 SCCR 377; 2008 SCL 724
Malige v France (1999) 28 EHRR 578; [1998] HRCD 897
Saini v Harrower sub nom Saini v Procurator Fiscal, Dundee [2017] HCJAC 76; 2017 SLT 1308; 2017 SCCR 530; 2017 SCL 1050
Tudhope v Eadie 1984 JC 6; 1984 SLT 178; 1983 SCCR 464
Watt v Dunn [2016] SAC (Crim) 2; 2016 SLT (Sh Ct) 104; 2016 SCCR 131
Sentencing Council, Reduction in Sentence for a Guilty Plea: Definitive guideline (Sentencing Council for England and Wales, London, March 2017), p 4, sec B (Online: https://www.sentencingcouncil.org.uk/publications/item/reduction-in-sentence-for-a-guilty-plea-definitive-guideline-2/ (2 November 2018))
Justiciary — Sentence — Discount for guilty plea — Whether, in road traffic cases, each element of a sentence should attract the same level of discount — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 196
Justiciary — Review — Appeal — Referral to High Court of point of law by Sheriff Appeal Court — Referral to High Court of whether, in road traffic cases, each element of a sentence should attract the same level of discount for a guilty plea — Whether appropriate — Criminal Procedure (Scotland) Act 1995 (cap 46), sec 175A
Cameron Wilson was charged in the sheriffdom of Grampian, Highland and Islands at Aberdeen on a summary complaint at the instance of Andrew Shanks, procurator fiscal there, with a speeding offence in contravention of orders made under the Road Traffic Regulation Act 1984. On 9 November 2017, the appellant pled guilty to the offence and was fined £200, reduced from £250 in light of the timing of the plea, and had four penalty points, which were not discounted, endorsed on to his driving licence. The appellant appealed against sentence to the Sheriff Appeal Court. The SAC referred the point of law raised in the appeal to the High Court of Justiciary.
Section 196 of the Criminal Procedure (Scotland) Act 1995 (cap 46) (‘the 1995 Act’) provides that when determining the appropriate sentence or other disposal or order where an offender has pled guilty, a court shall take into account the stage in the proceedings at which the offender indicated his intention to plead guilty and the circumstances in which that indication was given. Section 175A provides that the Sheriff Appeal Court (‘SAC’) may refer a point of law to the High Court of Justiciary for the opinion of the High Court, if the SAC considers that the point of law is a complex or novel one.
The appellant appeared on a summary complaint alleging a speeding offence in contravention of orders made under the Road Traffic Regulation Act 1984 (cap 27). The appellant pled guilty to the offence at a continued pleading diet. The appellant was fined £200, reduced from £250 in light of the timing of the plea, and had four penalty points, which were not discounted, endorsed on to his driving licence. The appellant appealed to the SAC against that sentence. The appellant submitted that the same level of discount should have been allowed for the penalty points as was allowed for the financial penalty. The SAC referred the question of the consistency of levels of discount across different elements of a sentence to the High Court.
The questions posed of the High Court in the reference from the SAC concerned: (1) the proper construction of sec 196 of the 1995 Act in road traffic cases where the sentence involved the imposition of penalty points as well as a fine or other penalty; (2) whether the court could adopt a discriminating approach to discount over separate penalties in road traffic cases; (3) whether the court could take account of public safety when considering discounts of penalty points or periods of disqualification; (4) the proper approach to the interpretation of sec 175A of the Act.
Before the High Court, both parties argued that: (1) discounting was a discretionary matter, exercised subject to certain broad principles; (2) any discount ought to reflect the utilitarian value of the plea; (3) public protection was not an appropriate consideration at the discount stage; and (4) if a discount was allowed in a particular case, it should be applied equally to all elements of the sentence. In addition, the appellant argued that the legal point was not complex or novel and so was unsuitable for referral to the High Court.
Held that: (1) sec 196 of the 1995 Act applied equally to all elements of a sentence (such as a fine, penalty points, disqualification) so that, other than in exceptional circumstances, the level of discount should be uniform across each element (paras 18, 21); (2) the only factor relevant to deciding on discount was the utilitarian value of the plea, public safety was relevant only to the selection of the headline sentence (para 22); (3) the Sheriff Appeal Court's view of a case as being complex or novel was determinative for the purposes of sec 175A (para 23); and appeal remitted to the Sheriff Appeal Court to proceed as accords.
Observed that the High Court of Justiciary could not normally refuse to entertain a reference under sec 175A of the 1995 Act (para 23).
Watt v Dunn 2016 SLT (Sh Ct) 104 explained and Gemmell v HM Advocate2012 JC 223followed.
The appeal called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), Lord Drummond Young and Lady Clark of Calton, for a hearing, on 24 August 2018.
At advising, on 4 September 2018, the opinion of the Court was delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] This reference from the Sheriff Appeal Court (‘SAC’) raises an important question of principle concerning whether, in a road traffic case where there are separate parts to a sentence, notably a fine and the imposition of disqualification or penalty points, the court requires to apply the same rate of discount to each part.
[2] On 9 November 2017, at the justice of the peace court in Aberdeen, the appellant pled guilty to speeding on 12 April 2017 on the A90 at Stonehaven. He was driving at 80 mph in a 60 mph zone; contrary to orders made under the Road Traffic Regulation Act 1984 (cap 27).
[3] The original pleading diet was on 28 August 2017 when, in the absence of the appellant, the case was adjourned until 19 September. The same happened on that date. The complaint was...
To continue reading
Request your trial
-
Appeal Against Sentence By John Joseph Mclellan Against The Procurator Fiscal, Glasgow
...manner to the approach taken to the hours of unpaid work. We were referred to Gemmell v HM Advocate 2012 JC 223 and Wilson v PF Aberdeen 2019 JC 1. [8] Having considered the submissions for the appellant we decided that the appeal raised questions of more general importance and wider applic......
-
Appeal Against Sentence By Bradley Young Against Procurator Fiscal, Aberdeen
...period of disqualification and then applied the one-third discount on a uniform basis across the appellant’s sentence: Wilson v Shanks 2019 J.C. 1. [7] In the event the first ground of appeal was refused, it was submitted that the period of disqualification ought to begin from the point at ......
-
Appeal Against Sentence By Alan James Against Hma
...“sentence or disposal” for the offence (cf. Gemmell v HM Advocate 2012 JC 223, Lord Justice-Clerk Gill at [70]; Wilson v PF, Aberdeen [2018] HCJAC 50, Lord Justice General Carloway delivering the Opinion of the Court at [17]). Section 27(3) applies to disqualification just as much as it doe......
-
Appeal Against Sentence By William Buchan Against The Procurator Fiscal, Perth
...having regard to any aggravating and mitigating factors and previous convictions. In terms of Wilson v Procurator Fiscal, Aberdeen [2018] HCJAC 50 the period of disqualification falls to be discounted by the same proportion as any other part of the sentence having regard to section 196 of t......
-
Four Models Of Judicial Reasoning In Sentencing
...Court’. 39[2011] HCJAC 129; 2012 JC 223. 40ibid [59]. 41ibid. 42[2013] HCJAC 150; 2014 SCCR 46 [13]. 43[2014] HCJAC 19; 2014 SCCR 244. 44[2018] HCJAC 50 [18]. 45Ferguson (n 43) [103] and [104], references omitted. 46See, respectively, Geoff Hall, ‘Sentencing’ in Julia Tolmie and Warren J Br......