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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Balgowan v HM Advocate [2011] ScotHC HCJAC_2 (12 January 2011) URL: http://www.bailii.org/scot/cases/ScotHC/2011/2011HCJAC2.html Cite as: 2011 SLT 285, 2011 SCL 418, [2011] HCJAC 2, [2011] ScotHC HCJAC_2, 2011 GWD 3-117, 2012 JC 5, 2011 SCCR 143 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord ReedLord HardieLord Marnoch
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[2011] HCJAC 2Appeal No: XC301/10
OPINION OF THE COURT
delivered by LORD MARNOCH
in
APPEAL AGAINST SENTENCE
by
PAUL BALGOWAN Appellant;
against
HER MAJESTY'S ADVOCATE Respondent:
_______
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Appellant: Shead; Plenderleath Runcie, Aberdeen
Respondent: Cherry Q.C.; Crown Agent
12 January 2011
[1] This is an appeal against sentence in which
the only ground now insisted in is ground 2 which is in the following
terms:
"2. The learned trial judge failed to take proper account of the fact that the appellant had formally tendered a plea of guilty to culpable homicide at the preliminary hearing. The basis of the plea tendered by the appellant was entirely consistent with the ultimate verdict of the jury, i.e. that the appellant stabbed the deceased. The Crown had rejected the appellant's plea to culpable homicide and it was plain to the appellant that said plea would not be accepted if he renewed it later in the proceedings. The learned trial judge failed to take into account the utilitarian value in the plea tendered at the preliminary hearing."
[2] That ground of appeal is accurate, so far
as it goes, but what is not stated there is that when the restricted plea of
guilty was rejected the appellant then intimated a Special Defence of Self Defence.
Not only that, but at the ensuing trial for murder he was allowed to withdraw
that Special Defence and substitute a Special Defence of Incrimination, which latter
defence was thereafter persisted in throughout the trial.
[3] It is, we think, reasonably well settled
that the objective of the statutory provisions relied on by the appellant,
namely Section 196(1) of the Criminal Procedure (Scotland) Act 1995, as
amended, was no more nor less than utilitarian in the sense that by encouraging
pleas of guilty it was hoped that considerable amounts of public time and
expense would be saved as well as sparing witnesses the trouble, expense and,
on occasion, distress of attending court and giving evidence. Although
reference has also been made, in this context, to the possible importance of
contrition, that has always been a relevant consideration for a sentencing
judge and was plainly not the reason for the legislation. Insofar,
therefore, as the provisions in question are founded in expediency it is hardly
surprising if they do not lend themselves easily to legal analysis or, for that
matter, comparative justice. Nonetheless, the working out of these provisions
has been left to the judiciary rather than the legislature.
[4] In the earlier decisions of the court on
this matter, particularly Du Plooy v HM Advocate 2003 SCCR
640, guidance was given as to how Section 196(1) should be applied in the
ordinary situation where the plea in question is accepted. However, the next
step was to examine the application of the Section, if any, to the situation
where a restricted plea is tendered and rejected and that, indeed, was, in
part, the subject matter of the leading case of Spence v HM Advocate
2007 SCCR 592.
[5] At this stage it is appropriate to set out
in full Section 196(1) since much turns on its particular structure and
wording:-
"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 shall 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."
In Spence one thing the court made clear, in our opinion, was that before the section could be invoked at all there had, at some stage, to be a recorded plea of guilty. In emphasising that requirement the court was doing no more than echoing the opening words of the subsection. Section 196(1) does not apply unless "an offender...has pled guilty to an offence"; and, in the context of the 1995 Act, the words "pled guilty", albeit habile to cover a partial plea, can only be understood as referring to the tendering of a plea of guilty to the court. Provided that requirement is satisfied, however, the court is required to take into account "the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty": something which he may not have done until the plea was tendered, or may have done prior to the tendering of the plea. The most obvious example of such an indication is the intimation to the Crown Agent that an accused "intends to plead guilty" in terms of section 76(1) of the 1995 Act. That intimation is not itself a plea of guilty, but it is to be taken into account, in accordance with section 196(1), provided a plea of guilty is subsequently tendered. Thus the effect of the plea, in terms of discount, may well draw back to a much earlier stage in the proceedings. It is to be noted that what is required is an indication of an "intention" to plead guilty, not merely an enquiry as to the Crown's attitude in the event that a plea of guilty were to be tendered, or an indication of a possible willingness to plead guilty on a particular basis. The desirability for as early intimation as possible of that intention to plead guilty and for as much detail and clarity as possible in the expression of that intention, as also the importance of its remaining constant, is fully dealt with in Spence and we do not find it necessary to further elaborate on that aspect of the subsection other than to say that the clearest manifestation of that intention, as soon as it is available, will be a formal plea duly tendered and recorded.
[6] But, as is also made clear in Spence,
the utilitarian value of a partial plea of guilty depends on the stance which
it represents being adhered to throughout the proceedings, not least by the
plea being recorded or again recorded at the outset of the trial diet thereby indicating
that, even if the plea is rejected, the contentious issues at trial are likely
to be restricted in ambit. Indeed, the natural corollary should be that
uncontroversial evidence will be agreed as provided for under Sections 257 and
258 of the 1995 Act and that, one way or another, the duration of the trial
will be materially shortened.
[7] Several results follow. In the first
place, and despite a remark to the contrary made obiter in Spence,
even if the restricted plea is not in the end vindicated by the verdict
of the jury, it will still, in our view, be open to the accused to argue for an
appropriate discount to reflect the utilitarian value of his plea as just
described. Correspondingly, if, when the plea is rejected, the accused takes
advantage of the trial to advance a substantive defence inconsistent with the
restricted plea, the entitlement to any discount will almost certainly be lost.
[8] Secondly, if a rationale is required for
insistence on a formal plea, as opposed to enquiries made of the Crown on a
hypothetical basis or even an unambiguous offer to plead guilty, it is quite
simply that neither of these courses of action carry with them the same
implication as a recorded plea. On the contrary, if these overtures are
rejected the assumption will be that what is in view is an unrestricted trial.
[9] Thirdly, insofar as they differ from the
foregoing analysis we must respectfully disagree with the dicta
contained in para [21] of HM Advocate v Booth 2005 SCCR 6.
These dicta are, however, obiter in that they are expressed in a
case where the guilty plea in question was accepted by the Crown and where the
issues canvassed in Spence and in the present case were, as a result, in
no way focussed.
[10] Fourthly, the decision in HM Advocate
v Simpson 2009 SCCR 554 can, we think, no longer be regarded as sound
insofar as the court there purported to give a discount under Section 196(1)
despite the absence of any recorded plea of guilty and the fact that the
accused in the end went to trial on a substantive plea of self defence - an
approach which, somewhat surprisingly, the Crown appears to have encouraged.
Ordinarily the court as presently constituted would not be in a
position to make such a pronouncement but there is this peculiarity, namely
that in Simpson the court did not intend in any way to depart from the
guidance given in Spence but on the contrary purported to follow that
guidance. In that situation, we do not think it necessary that any larger
court be convened.
[11] Lastly, reverting to the circumstances of
the present case, it will be apparent that, although a restricted plea was
recorded at a preliminary hearing on 18 November 2009, it was not thereafter
adhered to. On the contrary, when that plea was rejected by the Crown, the
accused lodged a Special Defence of Self Defence. Moreover, at the
commencement of the trial he was allowed to withdraw that special defence and
substitute a Special Defence of Incrimination which was thereafter insisted in
throughout the trial. It follows that no utilitarian benefit whatsoever
resulted from the tabling of the restricted plea. This appeal must accordingly
be refused.