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MODERNISING JUSTICE IN SCOTLAND: THE REFORM OF THE HIGH COURT OF JUSTICIARY

Chapter 7: ENCOURAGEMENT TO EARLY REALISTIC PLEAS

Where is this covered in Lord Bonomy's report?

96. Chapter 7, paragraphs 9 to 22.

What is the present law?

97. Scots law values judicial discretion in sentencing. Only the judge has heard all the facts and circumstances of a case and only the judge is in a position, having obtained all necessary reports on the accused's state of mind, social background etc, to decide an appropriate sentence, which balances the need for individual punishment, public protection, deterrence and rehabilitation. Historically, the legislature has been reluctant to interfere with judicial discretion.
98. Under the present law, there are very few fixed formulae for calculating sentences (examples being the mandatory life sentence for murder and the mandatory sentence of 7 years for a third offence of Class A drug trafficking). The Court of Criminal Appeal does, however, provide a mechanism for regulating consistency of sentencing. The convicted person may appeal against sentence and the Lord Advocate may also appeal on grounds of undue leniency. The Appeal Court may promote consistency through reducing or raising the sentence imposed by the court of first instance. The Appeal Court may express an opinion in an appeal against sentence as to the appropriate sentence for similar cases (referred to as sentencing guidelines) and the lower courts in passing sentence must have regard to any such guidelines. The courts also have a role in determining the date on which a sentence is to start to take account of time already spent on remand in custody, and the court may also adjust sentences to take account of a plea of guilty.
99. The latter provision is contained in section 196 of the Criminal Procedure (Scotland) Act 1995 and is in the following terms:

100. Sentence following guilty plea.

     196(1) In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court may take into account- (a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and (b) the circumstances in which that indication was given.

     What are the arguments for change?

100. Lord Bonomy considered that if his proposals for early and more thorough case preparation by the defence were implemented, then accused persons and their legal advisers would be ready at the preliminary hearing stage to take a decision as to whether to proceed to trial. However Lord Bonomy appreciated that the decision will not always be taken at that stage. Faced with a reasonable prospect of acquittal the accused is likely to want to go to trial, but if faced with little or no prospect of acquittal, what the accused wants above all is an indication of what sentence is likely to be imposed. The evidence of practitioners suggested that accused persons would be more likely to plead guilty at an earlier stage if the sentence was likely to be significantly reduced as a result. It was important in securing early pleas that this reduction should be predictable.
101. Lord Bonomy considered that if the accused was going to plead guilty in the end, he or she should be encouraged to do so as early as possible rather than leaving this to the day of the trial, when witnesses would already be assembled.
102. He therefore examined ways in which Section 196(1) could be strengthened so that accused persons would have more encouragement to enter an early realistic plea of guilty to spare victims and witnesses any further ordeal.
103. He rejected an overt system of plea bargaining; and he was also reluctant to impose restrictions on judicial discretion to fix an appropriate punishment for the crime, expecting that it was only a matter of time before the Appeal Court issued guidance on how section 196 is to be applied.
104. However, he did recommend a limited change to substitute 'shall' for 'may' in the introduction to section 196(1) and by adding, at the end of the subsection, the words 'but may leave these factors out of account if no indication of the intention to plead guilty was given prior to the date assigned for the trial'.

What were the views expressed in consultation?

105. The views of the judiciary were mixed, but on balance it appeared that they would prefer the Appeal Court to give clear guidance as to what reductions in sentence are liable to be achieved by guilty pleas at various stages. And they wanted discretion to take the seriousness of the offence into account, so that a guilty plea would not always merit a discount. Some others, while supportive of the principle, wondered whether it was wise to discourage too strongly a plea of guilty on the day of trial. After all, this does at least spare the witnesses from giving evidence. There was strong opposition to sentence discounting in the public focus groups; indeed, they preferred the approach of an increased sentence for anyone pleading guilty late in the day.

Our detailed proposals and how we will implement them

106. Early guilty pleas are helpful to vulnerable victims and witnesses. They are also beneficial to the system in terms of avoiding unnecessary hearings. But it is not easy to develop an approach which strikes the right balance between respecting the circumstances of the individual case and providing greater clarity for the accused and his or her legal representative.
107. While we value judicial discretion, we do think consistency in sentencing is important and would expect the Appeal Court to provide for this through signalling clearly cases where their decisions on appeal by the accused or the Lord Advocate regarding sentence have wider implications for similar cases. However, experience to date is that the Appeal Court's powers to set sentencing guidelines have been little used. We understand that a number of relevant cases are to be considered by the Appeal Court very shortly.
108. Without explicit sentencing guidelines in most cases, it will not be possible for the accused's legal advisers to give a clear indication of the sentence expected were the accused found guilty after trial, and what discount might be expected in the event of a guilty plea at various different stages. We hope that the Appeal Court will make greater use of its existing powers to clarify these matters.
109. In the longer term our proposals for a Sentencing Commission to review sentencing policy could lead to a stronger framework for consistent sentencing and we will be setting up the Commission in the next few months. We cannot, however, prejudge how these proposals will be received in order to build on them to implement the High Court review.
110. The position will therefore continue to be ruled by judicial discretion. Provisionally, however, we do think that it would nonetheless be useful to clarify the existing provision on this point.
111. We accept the proposal to change 'may' to 'shall' in the introduction to section 196(1). This will signal that the sentencing judge must take into account the stage at which the accused notified his or her intention to plead guilty and also the circumstances in which this indication was given.
112. We are, however, sympathetic to those concerned that efficiency may not be best served by suggesting that no discount should ever be given in relation to a plea on the date of trial. To spare witnesses a court ordeal by pleading guilty even on the day itself may occasionally deserve some discount. To leave such a plea entirely out of account could encourage accused persons to go to trial when they may otherwise have pled guilty. We therefore propose to leave the wording of the current section unchanged on this point, rather than adding the specific rider that a plea at trial may attract no discount.
113. Finally, we propose to go further than Lord Bonomy recommends by requiring the judge to state in open court that a discount has been granted, and if no discount is awarded, to state reasons for this decision.
114. We shall, however, review these proposals before the Bill is introduced when we have the clarification of the law in this area which will result from the Appeal Court's judgements on the cases it is about to hear.

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