Sheriff Appeal Court issues guideline judgment in refusing motorist’s appeal against ‘excessive’ fine
A motorist who was fined £500 after being convicted of driving without a valid licence and without insurance has failed in an appeal to have the financial penalty reduced.
The appellant claimed that the sentence imposed was “excessive” because it would take nearly two years to repay the fine at £30 per month, but the Sheriff Appeal Court refused the appeal.
‘Driving with a valid licence’
Sheriff Principal Mhairi Stephen QC, sitting with Sheriff Principal Duncan Murray and Appeal Sheriff Andrew Cubie, heard that the Ian Foster drove a motor vehicle in Couperfield, Edinburgh on 30 August 2018 without a valid driver’s licence and therefore without the requisite insurance.
The court was told that the appellant, who held a provisional licence, had decided to drive his mother’s car without being accompanied by a qualified driver and displaying ‘L’ plates.
His mother discovered that her vehicle was parked in a different parking space from that she had used when she parked it the night before, and noticed that it had minor damage to the front bumper which had not been there before.
The appellant’s mother had contacted the police and indicated that her son, who was staying with her, had professed ignorance of how the vehicle came to be damaged.
But a month later the appellant attended Leith Police Station, accompanied by his mother, and admitted being the driver.
The appellant, who was subject to two bail orders from Glasgow Sheriff Court, was subsequently prosecuted in the Justice of the Peace Court at Edinburgh on summary complaint which libelled three charges all contraventions of the Road Traffic Act 1988.
The appellant pled guilty at a continued intermediate diet to charge 2, driving without a valid licence contrary to section 87(1) and charge 3, driving without insurance contrary to section 143(1).
The respondent’s depute accepted his not guilty plea to charge 1 – taking and driving away the vehicle without the owner’s consent.
Having heard both the respondent’s narration and the plea in mitigation, the justice determined that fines of £130 and £550 were appropriate on charges 2 and 3 respectively.
She reduced these fines to £100 (£10 of which represented the bail aggravations) and £400 (£40 of which represented the bail aggravations) by virtue of the timing of the plea and the application of section 196 of the Criminal Procedure (Scotland) Act 1995.
The appellant’s licence was endorsed with six penalty points imposed on the no insurance charge this being the minimum number for such an offence.
The court allowed payment of the fines at the rate of £30 per month.
However, the appellant challenged the justice’s selection of the headline fines, which totalled £680, arguing that the fines imposed were “excessive”.
Firstly, the appellant argued that the headline fines of £680 were excessive on the basis that there were “no particular aggravating features” to the offending other than the bail orders.
It was also pointed out that the appellant, who was in receipt of state benefits by way of employment support allowance, had “very limited financial means”.
Secondly, it was submitted that the “excessive nature of the headline sentence” was also illustrated by the fact that repayment of the fine at £30 a month would take “almost a full two years”.
It would still take the better part of one-and-half years even after consideration of the level of discount afforded to reflect the “utility” of the plea, although no issue was taken with the level of discount.
However, the appeal sheriffs said there was “no merit” in the first ground of appeal.
In relation to the second ground of appeal, the court was referred to a number of authorities, including Paterson v McGlennan 1991 JC 141 and Jackson v Murphy 2016 SLT (Sh Ct) 55.
In Jackson the fine would take 92 weeks to be paid by instalments of £10 per fortnight, but the Sheriff Appeal Court reduced the fines imposed on directly analogous offences from £120 (no valid licence) to £60 and from £340 (no insurance) to £165, with the reduced fines of £225 being paid at the same instalment rate.
The court followed Paterson and allowed the appeal on the basis that 92 weeks to repay was too long and held that the “fines should be seen as excessive and amounting to a miscarriage of justice”.
The court in Jackson observed that the High Court had indicated on a number of occasions that “when a fine is to be paid in instalments it ought to be capable of being paid in about a year”, but the appeal sheriffs in the present case said Paterson was not authority for that proposition.
Rejecting the second ground of appeal, the court held that the fine imposed was not excessive.
Delivering the opinion of the court, Sheriff Principal Stephen said: “Accordingly, we do not agree that the authorities set out any rule or principle to the effect that when a fine is to be paid by instalments it ought to be capable of being paid in about a year. Paterson sets no such rule.
“As a matter of generality where a fine is to be paid by instalments the period for repayment should not be unreasonably long or burdensome for the offender. This is a matter on which the court must exercise its judgement as to what is reasonable.
“Although there is no general rule that a fine payable by instalments should be repaid within a year clearly the court in Paterson considered 90 weeks to be excessive for fines involving road traffic offending but declined to set any rule or guidance as to what a reasonable period might be.
“In the circumstances of the present case counsel for the appellant identified a practice of setting fines which were repayable within period between a year and 18 months.
“Without inhibiting the court’s discretion on matters of sentence, we consider that achieving payment within such a period (12 to 18 months) will generally provide a useful and realistic check of the level of fine to be imposed. Such a check does not have the status of a rule but it is nonetheless an approach which may assist sentencers.
“We consider that reflects practice and affords a reasonable margin in straightforward cases but would emphasise, as this court did in Jackson, that each case will depend on its own circumstances.
“On appeal, when considering the question of whether a fine is or is not excessive by the measure of how long it will take to pay by instalments, we are of the view that the court must look at the actual fines payable by the appellant not the headline fines as proposed in the note of appeal.
“Accordingly, as the fines in this case will be payable by instalments over a period of some 71 weeks we do not accept that the fines imposed are excessive and we will refuse the appeal.”
© Scottish Legal News Ltd 2020