More guidelines, and a remarkable injustice

Within a few hours of the previous entry on this blog, speculating that the appeal court might make more use of its power to issue sentencing guidelines in the future, the court has issued an opinion doing just that. (Recommended Lottery numbers may appear here later.) The case is Spence v HM Advocate [2007] HCJAC 64.

Spence refines the guidance on sentence discounting for guilty pleas originally formulated in Du Plooy v HM Advocate 2005 JC 1. Two main points arise from the case.

(a) Contrary to the view taken in Roberts v HM Advocate 2005 SCCR 717, it may in fact be appropriate to give a discount for a “restricted” plea of guilty which is not accepted by the Crown but is, in effect, accepted by the court in its verdict: most obviously in a murder trial where the Crown rejects a plea of guilty to culpable homicide but that is the verdict returned by the jury.

(b) The guidance offered in Du Plooy – that discounts should “not normally exceed a third of the sentence which would otherwise have been imposed” – is expanded and refined. The full guidance is found in paras 14-15 of the Lord Justice-General’s opinion. Briefly, it sets out a usual discount of one-third for an accelerated guilty plea under section 76 of the 1995 Act, a discount of one-quarter for a plea at a first diet or first preliminary hearing, and a discount of one-tenth or less for a plea at the trial diet.

None of this was of any value to Mr Spence himself, however. Although, prior to his trial for murder, his agents had asked whether the Crown would accept a plea of guilty to culpable homicide (and had been rebuffed), no such plea had ever been formally tendered. Accordingly, the appeal court said, there was no basis for a discount despite the jury having returned a verdict of culpable homicide. In fact, in sentencing him, the trial judge had erred in “taking into account” his agents’ efforts to persuade the Crown to accept his plea. The appeal court went on to conclude that the sentence imposed had actually been inadequate and increased it from eight years in a Young Offenders Institution to ten.

This outcome is disturbing, to say the least. Although the appeal court unquestionably has the power to increase a sentence on an appeal by the accused, leave to appeal has been required since 1995. Logically, this should render such increases rare at the very least (see Hendry v HM Advocate 2006 JC 129, at [6] per Lord Justice-Clerk Gill). If the appeal court persists in exercising this power, it has the absurd result that an accused who lodges a appeal against sentence is at no risk of having his sentence increased if his appeal is hopeless (because leave will be refused and the appeal will proceed no further), but if a judge of the High Court decides that his appeal is arguable and grants him leave to pursue it, suddenly he is at risk of his sentence being increased. That cannot be just.