Further to my blog the other day we have now received the 61 page judgement in connection with a conjoined hearing regarding 7 appeals against sentence.
Euan Ross is one of the aforementioned cases.
Our little bird called it right when we were told that penalty points can be reduced in Road Traffic cases but unfortunately it looks like we still cannot get away from the statutory minimum of 3 points.ie If Parliament has stated that you get at least 3 penalty points for the contravention then that remains the case even if you plead guilty at the first calling of the case.
The case does state that penalty points and disqualification have to be taken as a punishment element and indeed discounts can be applied where the court considers that an early plea merits this. Paragraph 167 (Final paragraph) makes it clear that disqualification and penalty points may be subject to a discount in appropriate circumstances. However it states "As sentencers cannot impose a sentence below the statutory minimum, which is a feature of both disqualification and penalty points, those who plead guilty in cases where the minimum sentence of disqualification or penalty points would have been selected in any event, CANNOT obtain a discount in respect of those parts of the sentence. " Clearly the appropriate part of any discount would be reflected in the fine.
Shame as I felt that if the minimum points could be reduced by way of decent mitigation and an early plea there could have been a real significant utilitarian benefit to all as we could clear the lower courts of a vast number of road traffic trials taken by those people appearing with 9 live points and a desperate desire to avoid a 6 month ban.
Statutory minimum sentences can of course be altered where we have the likes of the Drink Drive Rehabilitation Scheme. Successful completion of same means that a driver can reduce a courts sentence by up to 25% hence a 12 month statutory minimum sentence can in fact be reduced by up to 3 months through further statutory provisions of the Road Safety Act 2006
Perhaps our courts should be able to order that drivers undertake further training (At their expense) and reduce the penalty points imposed dependent upon successful completion of some advanced driving style course.
The alternative to prosecution scheme is widely used in England and seems to be worth rolling out on a larger scale where the courts are entitled to exercise their discretion over a wider range of speeds. This would thereby encourage safe driving habits and skills and not just penalise drivers with bans and penalty points.
The bottom line of the 61 pages judgement seems to be that we cannot take sentencing discounts of 1/3 rd to for granted. They have to be earned and we now have more direction from the High court about where they apply and the starting point for their consideration.
Since the decision in Du Ploy and section 196 of the 1995 Criminal Procedure (Scotland) Act there has been a firm expectation of a 1/3rd sentence discount where an early plea was tendered but it would seem that the accused will no longer be able to rely on this expectation.
We will have to see how the bench interpret the guidance laid down in this case and see if it makes a palpable difference to how cases are dealt with on a day to day basis. If we see a strong movement away from the 1/3 rd early plea discount we will soon see our court clogging up with cases again.
Justice is certainly not about money but the public do derive a significant financial benefit when cases end at an early stage in proceedings. Some of the statistics referred to in this case demonstrate that point, all too clearly.
Figures for 2005/2006 indicate that an early plea in a High court case would cost the public purse, on average, £348 however if that case went to trial the expected costs would be in the region of £17,492. For a Sheriff court solemn case the average cost of prosecution would be in the region of £6,720 but if dealt with by an early plea £129.
Money is a significant factor but clearly not the most important factor. We should not discount early guilty pleas simply to save a few quid for the public purse. The main issue is how justice is done and how it is perceived to be done by the public in general. If we get into the land of horse trading cases and plea bargaining we may get into the dangerous ground where innocent people feel compelled or pressured into a guilty plea as they prefer the odds in securing a lower sentence. Confidence in our system of justice is at the heart of the matter and a fine balancing act requires to be done by our Judges, Sheriffs and Magistrates in all of our courts. We will require to rely upon what our Australain cousins refer to as the process known as "instinctive synthesis" (Markarian -v- R HC Australia 25)
It is interesting that the courts seem to be slightly ahead of the legislature on this one by demonstrating that the law in England and Wales is different from Scotland when it comes to speeding offences and other road traffic matters.
As we know the Scotland Bill, when/if passed, will allow the Scottish Government to tinker with the legislation not just in relation to tax raising powers but in relation to matters such as penalty points in speeding cases.
In England and Wales they have the Sentencing Guidelines Council who have issued guidelines on sentencing that suggest that penalty points and disqualification periods should NOT be taken into account when establishing any sentence reduction period. We previously had a similar position following the case of Rennie -v- Frame 2005 SCCR. However, now those shackles have been removed and our courts can take a sensible common sense approach to sentencing in road traffic cases and apply discount to the points or the period of disqualification where it considers this to be appropriate. The public remain protected, in that statutory minimum sentences cannot be reduced (Except where there is statutory provision to allow same, e.g. Where a Drink Drive Rehabilitation course has been completed)
If/when the Scotland Bill receives royal assent, one wonders if the Scottish Government will be at the forefront of a new penalty points system that rewards drivers for completing further driver training, or if they will just bludgeon Scottish drivers with higher penalty point tariffs and more speeding fines. If they simply go down the "big stick" route they will be open to justified criticism from Scottish drivers who just see these fines as a further road tax. They may also find that there would be a significant political tariff to pay if our drivers felt hard done by.
Increased points and higher penalties will do little or nothing to enhance road safety and the mind set of drivers in Scotland.
We know that the Drink Drive Rehab Scheme works as there has been plenty of supporting evidence published. Speed Awareness Courses seem to work in England but are not widely used in Scotland. The Scotland Bill gives us a chance to address road safety using the "Carrot and the Stick". These courses can be self financed by offending drivers and they can have a significant long term benefit in changing driver attitudes, skills and abilities making the roads safer for all of us.
