Sheriff Appeal Court ‘erred in law’ in interfering with justice’s decision on driver’s sentence

The Appeal Court of the High Court of Justiciary ruled that the Sheriff Appeal Court “erred in law” in interfering with the justice’s decision on the discount to be applied to the sentence imposed.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull, heard that the appellant Michael Saini pled guilty by letter – at the earliest opportunity – to a charge of speeding.

The justice of the peace would have imposed a fine of £300 and six penalty points, but to reflect the plea proposed to discount these by one third, as he explained in both his original and supplementary appeal reports.

But having reduced the fine to £200 the penalty points were mistakenly only discounted to five, because the justice thought that, since he required to impose a minimum of the penalty points, he could only apply the discount to any points imposed in excess of that number, and accordingly he applied the one-third discount to three points rather than six.

An appeal limited to the level of penalty points imposed was presented to the Sheriff Appeal Court which – while recognising that only in “exceptional circumstances” should an appeal court interfere with a discounting decision – considered that the justice had erred in failing to give “cogent reasons” for the discount and concluded that a discount of 15% was appropriate in a case of this kind, increased the fine to £255 but made no alteration to the level of penalty points.

The appellant, represented by solicitor advocate Simon Collins, appealed that decision to the High Court of Justiciary, where advocate depute Alex Prentice QC appeared on behalf of the Crown.

The Sheriff Appeal Court had noted that in Gemmell v HMA 2012 JC 223 it had been stated that the level of discount was one for the sentencer.

Nevertheless, the court considered it desirable that it should “exercise discretion” in accordance with some broad general principles and that it should take the opportunity to “express a general view of discount to be awarded” in cases such as this where it may be considered that conviction was, to repeat the phrase used in Coyle v HMA 2008 JC 107 and Horribine v PF Edinburgh 2008 JC 306, “practically inevitable”.

On that basis the court considered that a discount of one third was “not merited” and therefore amended the fine to one of £255 and left the penalty points at five.

However, the judges ruled that the appeal sheriffs erred in law and accordingly re-instated the fine of £200 and reduced the penalty points from five to four.

Delivering the opinion of the court, the Lord Justice Clerk said: “In Gemmell the court specifically considered the question of the strength of the case against an accused and stated that ‘the strength of the Crown case ought not to be treated as a factor influencing the amount of the discount’ (per Lord Gill, Lord Justice Clerk, para 48). Lord Osborne and Lady Paton delivered dissenting opinions in that case, but their dissent was restricted to the treatment of that element of a sentence imposed specifically for public protection… Accordingly, in suggesting that the strength of the Crown case was a factor which might be prayed in aid in withholding or restricting discount the Sheriff Appeal Court fell into error.

“In Gemmell the court also made it very clear that the selection of the appropriate, or any, discount, was a matter for the discretion of the sentencer, something which had repeatedly been stated by this court. The discretion is not wholly unfettered, since the sentencer must take account of the principles upon which sentence discounting is based (see paras 32 and 145). However, where the sentencer has given cogent reasons for his decision an appeal court should interfere only in exceptional circumstances.

“In this case the confusion which arose because of the justice’s error led to the supplementary report referred to above in which a confusing and unconvincing explanation is given for the situation which eventuated. However, in his original report, before realising the error in calculation, the justice made it clear that (a) he was aware that the question of discount was a matter of discretion; (b) that the only relevant factor was the utilitarian value of the plea; and (c) having regard to the timing of the plea, at the first available opportunity, he considered that a discount of one third should be given. These are satisfactory reasons with which the Sheriff Appeal Court should not have interfered save for a correction of the arithmetical mistake.”

The appeal judges also observed that the focus of submissions to the Sheriff Appeal Court was on the confused nature of the JP’s approach to discount in relation to penalty points and the court did not indicate that they were considering making in effect a guideline decision.

“Had it done so,” Lady Dorrian added, “the opportunity would have arisen for further submissions not only from the appellant, but from the Crown which would have had a locus to address the issue of (a) whether this was an appropriate case for such a step; and (b) what the considerations for such a decision might be. It might also have questioned whether it would be appropriate for a court composed of only two of its members to issue such a decision.”