Anthony Herd v. Her Majesty’s Advocate [2017] HCJAC 80

Note of appeal against sentence:- On 9 August 2017, at Dunfermline Sheriff Court, the appellant pled guilty on indictment at a trial diet to a charge of assault under deletion of the words “fire an item from a crossbow at him striking him on the head”. The starting point selected by the sentencing sheriff was 13 months imprisonment which he discounted by 10% to 11 months and 2 weeks to reflect the plea of guilty. A further 2 months was deducted to reflect the period of time the appellant had spent on remand, resulting in a final sentence of 9 months and 2 weeks imprisonment. The appellant appealed against his sentence in relation to the discount allowed. The circumstances were that the date of the offence was 11 April 2017. The appellant first appeared on petition on 15 April and was fully committed in custody on 21 April 2017. On 10 May 2017 the appellant’s solicitor met with a senior fiscal depute and made an offer that the appellant would plead guilty in terms which were near identical to those ultimately recorded on 9 August. On 10 May the solicitor was contacted by e-mail by the senior fiscal and advised that the assault charge would have to include reference to the appellant firing an item from a crossbow at the complainer and repeatedly striking him on the head with the crossbow to his injury. On 18 May the solicitor, having obtained the appellant’s instructions, advised that he would plead guilty to an assault but that he denied firing the crossbow. The Crown refused to accept the terms of that offer and an indictment was served which cited the appellant to a first diet on 25 July 2017 with a trial diet set for 7 August. At the first diet the offer to plead in the same terms as had previously been offered was made to the Crown and again it was refused. A continued first diet was assigned for 1 August 2017 and at that time the case was continued to trial, the appellant again having pled ‘not guilty’ to the indictment. On 9 August 2017 the appellant pled guilty in similar terms to the offer made on 10 May 2017. There was no explanation as to why the plea was now acceptable to the Crown when it had previously not been. In his report to the court the sheriff indicated that he took no account of discussions which had taken place between the Crown and the defence and he took the view that the plea offered in May had not been adhered to at either of the first diets or within the terms of the defence statement lodged. It was submitted here on behalf of the appellant that unequivocal offers to plead guilty had been made orally and in writing which offer was eventually accepted. It was submitted that the sheriff had erred in failing to take account of the procedural history of the case and the discussions which had taken place between the Crown and the defence. It was submitted that it was unfair to deny the appellant a higher discount which he would likely have received if the Crown had accepted the plea offered at the outset. Here the court allowed the appeal and increased the discount from 10% to 25% resulting in a sentence of 7 months and 3 weeks. The court reiterated that the clearest way to indicate an unequivocal intention to plead guilty is by tendering the plea and having it recorded at any such hearing, however, in the present case there were circumstances which allowed the earlier history to be taken into account, notwithstanding the pleas of ‘not guilty’ at the first diets. In particular, the court considered that the email sent by the appellant’s solicitor on 18 May set out an unequivocal indication of his intention to plead guilty in the terms ultimately accepted by the Crown. It was noted that, whilst the Crown’s position in relation to what was an acceptable plea by August 2017 had changed, the appellant’s position had not changed since May 2017 when he first offered to plead guilty and the court was prepared to consider the issue of discount in light of the previous discussions between the appellant’s solicitor and the Crown before the indictment was served.