APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Carloway Lady Dorrian Lord Uist	[2009] HCJAC 82 Appeal No: XJ607/09 OPINION OF THE COURT delivered by LORD CARLOWAY in NOTE OF APPEAL AGAINST SENTENCE by EUAN McWILLIAM ROSS Appellant; against PROCURATOR FISCAL, ABERDEEN Respondent: _______

Appellant: CM Mitchell; Barony Law Practice

Respondent: I MacSporran AD; Crown Agent

22 October 2009

[1] At a continued first calling of the summary complaint against the appellant on 6 March 2009, the appellant pled guilty by letter to a contravention of section 3 of the Road Traffic Act 1988. The offence occurred on 19 October 2008 on the Oldmeldrum to Newmacher Road. Two cars were stationary behind a third vehicle, which was waiting to turn right across the oncoming traffic. The appellant approached the line of traffic at a speed of 60 miles per hour. He was unable to stop and crashed into the first car, which crashed into the second car. The appellant's car was written off and the damage to the other two cost £4,000 and £1,500 to repair. The appellant's passenger sustained a fracture to the right wrist and left hand. Those in the two stationary cars had minor injuries.

[2] The appellant was aged 17 at the time of the offence. He is single and works as an apprentice mechanic, earning about £200 net per week. He was a first offender. The Sheriff fined him £500, discounted for the early plea from £750. He imposed seven penalty points; the higher mid level of the range from 3 to disqualification. This resulted in the revocation of the appellant's licence under the Road Traffic (New Drivers) Act 1995. The Sheriff did not apply any discount to the number of penalty points. In so acting, he followed Stewart v Griffiths 2005 SCCR 291, a two judge sentence appeal in which Lord Osborne delivered a short ex tempore Opinion of the Court which included the following:

"...a person who pleads guilty with the result that public resources are saved, as happened in this case, can reasonably expect a discount to be recognised... and...that ought to have been done in this case. We shall quash the fine of £450 and in its place substitute a fine of £350. We are not persuaded that there is any cause to interfere with the decision as regards penalty points. Penalty points in our view stand in a different position to a pecuniary penalty and are in the nature of a warning to an accused as regards their future driving".

[3] Leave to appeal in this case was granted at second sift only on the question of discount. The sift judges remarked:

"...in Wheatley's Road Traffic Law, 4^th edition at paragraph 8.13.1 the learned author points out that arguably penalty points may be discounted and at footnote 3 refers to Stewart and explains that many sentence appeals have resulted in reduction of points to reflect early pleas".

[4] However, it was argued by the appellant that a discount ought to have been applied having regard to the Court's decisions on disqualification; in particular Rennie v Frame 2005 SCCR 608. That was a three judge bench in which it was decided that there could, in certain cases, be a discount in the length of a disqualification because one component of a period of disqualification might be punishment and that component therefore ought to be discounted in terms of Du Plooy v HM Advocate 2005 JC 1. Lord Penrose, delivering the Opinion of the Court, said :

"[8] It is inevitable that protection of the public will be a material factor in selecting a period of disqualification. But other factors may be taken into account, and in particular punishment and deterrence...If the sentencing court approaches the selection of a period of disqualification in the light of a perceived need to punish the offender, or to deter offending, some part of the period selected would be within the scope of the observations in Du Plooy, and, to that extent, section 196 [of the Criminal Procedure (Scotland) Act 1995] would require to be considered, and some discount might be allowed. Any such discount would require a careful exercise of discretion that avoided reduction of the period below what was required for the protection of the public.

...

[10] In cases in which, as here on the Sheriff's narrative, the disqualification component of the total sentencing package is fixed as necessary in the interests of the safety of the public, and there is no element of deterrence or punishment of the offender in the selection of the period of disqualification, the sentencing court may properly take the view that it would be inconsistent with the purpose of the disqualification to limit its length in terms of section 196".

That case was followed recently in Neilson v Procurator Fiscal, Elgin, unreported, 20 May 2009 (XJ184/09), a two judge sentencing appeal where Lord Nimmo Smith, delivering the Opinion of the Court, said:

"Clearly the protection of the public is an important element in cases of this kind, but almost always the punishment of the offender is also an element; and it is because of that latter consideration that a discount is appropriate when consideration is being given to a period of disqualification".

[5] The Court is not persuaded that there is any difference in the considerations which apply to penalty points and those which apply to the lengths of disqualification. On one analysis, both could be said to contain elements of punishment as well as deterrence and protection of the public. On another, what is involved in both are orders ancillary to the punishment element in the sentence, i.e. any imprisonment, fine or other disposal. But there does not seem to be any logical or other reason for discounting a period of disqualification and not discounting penalty points or vice versa. The matter is further complicated by the fact that, in the many cases where there is a minimum level of penalty points or period of disqualification, no discount can be afforded, no matter how early the plea.

[6] The Court notes that in England, where the equivalent statutory provision is section 144 of the Criminal Justice Act 2003, the Sentencing Guidelines Council document "Reduction in Sentence for a Guilty Plea, Definitive Guideline, Revised 2007" states:

"A reduction in sentence should only be applied to the punitive elements of a penalty. The guilty plea reduction has no impact on sentencing decisions in relation to ancillary orders, including orders of disqualification from driving".

That Guideline followed a consultation document which stated, in relation to a guideline which omitted the last phrase of the revised version:

"54 It has come to notice that some courts are being urged by advocates to consider applying the reduction to ancillary orders, primarily disqualification from driving and the number of penalty points to be endorsed on a driving record following conviction for an offence attracting a variable number of points.

a) Disqualification may be mandatory or discretionary. It may be imposed primarily to protect the public from further offences or primarily as punishment.

b) The reduction principle is designed to be a general approach to encourage those who are guilty so to plead at the earliest opportunity. Extending the approach to ancillary orders was considered to add an unnecessary additional layer of complexity".

No-one appears to have disagreed; hence the revised Guideline.

[7] Some consider that there is much force in paragraph "b)" and that asking Sheriffs to divide up a period of disqualification into different parts is unrealistic and impracticable, especially in a busy sentencing court. Furthermore, the Court is not persuaded that, despite the views expressed in the High Court cases quoted, there is a uniform practice in the Sheriff Courts of discounting lengths of disqualifications but not penalty points. Equally, despite what was said by the Second Sift judges and indeed the editor of Wheatley's Road Traffic Law, who is admittedly very experienced in such matters, the Court is not persuaded that there is a practice, or at least a uniform one, of Sentencing Appeal Courts discounting penalty points for an early plea (cf the editors of Renton & Brown : Criminal Procedure para 22.26, under reference to footnotes 8 on p 338 and 1 on p 339).

[8] Accordingly, although as the Advocate Depute submitted, no doubt technically correctly, the Court could simply follow Stewart v Griffiths (supra) and distinguish Rennie v Frame (supra), it considers that these two cases are essentially in conflict with one another on a matter of important principle. This case should therefore be remitted to a bench of five judges in order to review the position in relation to the appropriateness of discounts being applied to both penalty points and the length of disqualifications and to provide the Sheriff Courts with definitive guidelines on these matters.