High Court issues judgment on discount rate to be applied to penalties in road traffic cases

Where a motorist has pleaded guilty to road traffic offences and the sentencing process involves the imposition of a fine and penalty points or a driving ban, any reduction to be applied to each penalty should be discounted at the same rate, the High Court of Justiciary has stated.
Other than in exceptional cases, such as where statutory minimums apply or a discount is otherwise impracticable, the rate of discount should be “uniform across all parts of the sentence”, the judges said.
The court issued its ruling following references in two cases from the Sheriff Appeal Court (SAC).
Sentence discount
The Lord Justice General, Lord Carloway, sitting with Lord Drummond Young and Lady Clark of Calton, heard that in November 2017 at the Justice of the Peace Court in Aberdeen, the appellant in one of the cases, Cameron Wilson, pled guilty to speeding after he was caught driving at 80mph in a 60mph zone on the A90 at Stonehaven. 
The JP imposed a fine of £250, which she discounted by one-fifth to £200 for the early plea.
The appellant, who had previously acquired five penalty points for speeding in October 2015, was also given four penalty points, but the JP did not think it appropriate to discount the points to three on the basis that “20% of a discount would have reduced the penalty points by 0.8 of a point which I was unable to do”.
The appellant in the other case, Stephen Gallagher, pled guilty at a trial diet at Glasgow Sheriff Court in April 2018 to a charge of drink-driving after being caught three times the legal limit. 
The sheriff imposed a fine of £325, discounted from £400 for an early plea, and disqualified him from driving for 18 months, but he did not discount the disqualification period because “I did not think that the circumstances supported a discount and in particular I had regard to the public interest when reaching that conclusion”.
Reference to High Court
The Sheriff Appeal Court referred the cases, seeking clarity on the application of section 196 of the Criminal Procedure (Scotland) Act 1995 - which provides that: “(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 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,” - having regard to the decision in Gemmell v HM Advocate 2012 JC 223, in which the court held that the the discount “applies to the whole sentence” and that the court should not “disaggregate any individual element from the starting figure and exclude it from the application of the discount”.
The SAC explained that it often sees cases in which there is a “discrepancy” between the rate of discount as applied on the same complaint to fines and penalty points.
Having regard to the dictum of the Lord Justice Clerk in Gemmell, one view was that the same rate of discount should be applied to both parts of the sentence, but on the other hand that may not have been what the Lord Justice Clerk had intended. 
Another question raised by the SAC was whether Gemmell obliged the court to disapply any consideration of road safety or public protection when deciding whether there should be a discount and, if so, the rate of that discount in relation to penalty points or disqualification from driving. 
It was said that there was a “tension” between the statement in Gemmell, that discount remained a matter for the discretion of the sentencer, and a requirement that the same rate of discount should apply to different parts of the sentence.
The SAC posed the question: “What is the proper construction of section 196 of the 1995 Act in road traffic cases where the sentencing process involves the imposition of a fine or other penalty and separately the imposition of penalty points?”
‘Same rate’ 
The High Court said the principles in Gemmell were “clear” but in light of Sheriff Appeal Court’s concerns that sentencers were having difficulty in applying them, the judges considered it important that they be restated in “unequivocal terms” in the specific context of road traffic offences.
Delivering the opinion of the court in the Wilson case, the Lord Justice General said: “Section 196 applies to both a fine and other parts of a sentence such as penalty points or disqualification from driving. All are penalties and, in a given case, should be discounted for an early plea of guilty at approximately the same rate. Other than in exceptional cases, such as where statutory minimums apply or a discount is otherwise impracticable, the rate of discount should be uniform across all parts of the sentence. Any differential would require to be fully reasoned in the event of a challenge.
“The passages in Gemmell v HM Advocate in which the Lord Justice Clerk (Gill) refers to disaggregating ‘any individual elements from the starting figure’, relate to the factors which will, when combined, instruct the headline sentence of, say, imprisonment or a fine (eg retribution, deterrence and protection of the public). The reference is not to different parts of a sentence (eg imprisonment and penalty points). 
“In terms of Gemmell, the function of the sentencer is to determine, first, the headline sentence, which may involve the imposition of different parts making up the whole sentence. The sentencer should then select the appropriate rate of discount; usually in terms of a percentage or fraction.
“The sentencer should then ‘simply’ apply the discount, if any, to all parts of the headline sentence. There will normally be no rational basis for selecting different rates of discount for different parts.”
‘Pragmatic’ approach
Lord Carloway added: “There are obvious cases in which the rate of discount cannot be the same or where, in respect of one part, cannot apply at all. These include, respectively, situations where applying the same discount would reduce the penalty to below the statutory minimum or where the relevant statute does not permit a discount. Comparative justice only arises where two or more accused are convicted of the same charge. 
“This is the effect of any penalty discounting system, whether applicable to specific road traffic offences or otherwise. There may be an element of inconsistency in the imposition of sentences for similar offences, but that again is the general effect of discounting. It is a pragmatic feature designed to improve the efficiency of the justice system. It must be applied in a consistent fashion.
“In relation to the indivisibility of certain numbers of penalty points by particular rates of discount, an element of pragmatism must again be employed.
“The fractions arrived at may require to be rounded up or down to achieve a practical result. This should not be a difficult exercise. In this case, for example, the discount of 0.8 penalty points could easily be rounded up to one point.”
The SAC also asked whether the court could operate a “discriminating approach” to discount over separate penalties in road traffic cases, but the High Court said such an approach was “not normally legitimate”.
The judges further advised that the court may not take account of public interest considerations such as road safety or public protection when considering whether to discount road traffic penalties.
On the proper approach to the interpretation of section 175A of the 1995 Act when the Sheriff Appeal Court proposes a reference to the High Court, the judges said it was primarily a matter for the SAC to decide whether a case raises a point which is “complex or novel”. 
“It is the SAC’s view that is determinative,” the Lord Justice General said, adding: “The High Court cannot normally refuse to entertain a reference.”
In the Wilson case, remitting the matter to the Sheriff Appeal Court, the High Court held that the JP “misdirected herself” in not discounting the penalty points at the same rate as the fine and in failing to consider “rounding up” the fraction of a point which the equivalent discount would have afforded.
In the Gallagher case, the judges also ruled that the sheriff misdirected himself in not discounting the disqualification at the same rate as the fine, and remitted the appeal to the SAC.
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