Man who claimed 10 per cent discount for guilty plea was not enough loses appeal

The Criminal Appeal Court refused the appeal by Ernest Findlay, who was sentenced to 30 months’ imprisonment after being given a ten per cent reduction for his guilty plea.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Bracadaleand Lady Clark of Calton, heard that in December 2015, on the first day of trial, the appellant and a co-accused pled guilty to a charge of assaulting Christopher Sweeney by repeatedly punching and kicking him on the head and body.

The court was told that the appellant appeared on petition and was fully committed in August 2015.

In November, his plea of guilty to assault by a single kick to the complainer’s head, to his injury, was rejected by the Crown.

Later that month his second plea of guilty to assault by a single kick to the complainer’s head to his severe injury was also rejected.

When the case called for trial on 8 December 2015, pleas of not guilty were accepted from the second and fourth accused, and the appellant and his co-accused pled guilty to assault to severe injury.

However, leave to appeal was granted on the appellant’s argument that his plea in terms of section 196(1) of the Criminal Procedure (Scotland) Act 1995ought to have attracted a discount greater than ten per cent.

It was argued that the decision to restrict the discount to the appellant’s sentence to ten per cent was a “miscarriage of justice”.

It was acknowledged that given the nature of the injuries it was “not surprising” that the both the initial plea and second plea had been rejected.

But it was submitted that the eventual plea had two elements: first, the appellant continued to acknowledge his own actions; and second, the actions of the co-accused had been agreed by the Crown and defence, subject to certain deletions, and the appellant had accepted that he bore “art and part responsibility” for those actions.

Counsel maintained that it had been “clear from the outset” that the appellant was not going to trial, as he had “accepted responsibility” for his own actions and the real issue was whether the first accused would do likewise.

It was argued that an allowance of ten per cent discount “fell short of the appropriate recognition” for the “utilitarian value” of the plea.

The appeal judges noted that the sheriff had concluded that the Crown had been right to reject the previous guilty pleas tendered by the appellant and that it was only on the morning of the trial diet that acceptable pleas of guilty were tendered by the appellant and the first accused.

The appellant’s guilty plea was negotiated and finalised only on the morning of the trial and the sheriff’s note recorded that it was not at all clear until then that the complainer would not have to give evidence.

Refusing the appeal, the judges observed that there was “very little utilitarian value” in the plea.

Delivering the opinion of the court, the Lord Justice Clerk said: “In the present case, the appellant is in reality in no different position to the individual who delays his plea until the position of the co-accused is determined. The correlation between the plea originally offered and that tendered was limited.

“With respect to the argument advanced, it would not at all be obvious that the appellant did not intend to proceed to trial: in the absence of explanation for its terms, the pleas tendered would be equally consistent with an intention to proceed to trial seeking to restrict his responsibility to that of actor.

“We find it difficult to understand the argument that to require the appellant to determine whether there was a sufficient common purpose to justify his pleading to a greater degree of the libel would be to set the bar too high. The appellant knew what he had done, and knew what actions he had participated in.

“Even had he been in doubt of that, it was acknowledged that by the time of the first diet he had received disclosure of the Crown case sufficient to enable him to identify the evidence that there was indeed sufficient common purpose to justify his pleading guilty to actions in which he was art and part.

“In this case the sheriff has given cogent reasons for restricting the discount, and we cannot fault those reasons. It is always a matter for the sentencing judge to try to assess the utilitarian value of the plea, and to proceed accordingly. It is clear that the plea had very little utilitarian value and the appeal will be refused.”