Her Majesty’s Advocate v. Iain Lindsay [2020] HCJAC 26

Crown appeal against sentence:- The respondent pled guilty under the accelerated procedure contained in section 76 of the Criminal Procedure (Scotland) Act 1995 to the following charge:- “…did culpably and recklessly cough in the faces of James Iredale and Scott MacDonald, both Police Constables, of the Police Service of Scotland, then in the execution of their duties to the danger of their life.” The sheriff imposed a sentence of 6 months imprisonment reduced to 4 months on account of the plea of guilty. The Crown appealed against the sentence imposed contending that it was unduly lenient and the sheriff erred in failing to give sufficient weight to the nature of the conduct, the previous convictions and the objective of deterrence. Here it was submitted on behalf of the Crown that the respondent had a bad record of previous offending including convictions for public disorder, dishonesty, assault and numerous convictions for contraventions of section 41(1)(a) of the Police (Scotland) Act 1967, section 90(1)(a) of the Police and Fire Reform (Scotland) Act 2012 and a conviction under section 1(1) of the Emergency Workers (Scotland) Act 2005. His most recent convictions on 2 September 2019 resulted in an 8 month custodial sentence and on 2 July 2019 he received a four month sentence. In relation to discount the sheriff allowed the maximum discount of a third to reflect “the considerable utilitarian value of the plea due to the current inability to conduct trials and backlog, caused by the Covid19 pandemic”. It was submitted on behalf of the Crown that whilst the maximum discount was appropriate it was submitted that insofar as the sheriff suggested that an enhanced discount was appropriate because of the Covid 19 pandemic, she was in error. Here the court allowed the appeal against sentence as it deemed the sentence imposed to be unduly lenient and increased the starting point to 15 months discounted to 10 months on account of the plea of guilty. In relation to the issue of discount, whilst the issue was not live in the appeal, the court considered the issue of discount having regard to the current Covid 19 pandemic and the impact that is having on the criminal justice system. The court considered that the current discount regime is relatively generous and the court did not consider that dealing with the issue of backlogs in the current situation as being an appropriate reason to allow a greater discount than 1/3. The court referred to the inherent risks in sentencing discounts, firstly, the issue of giving an accused person too great an incentive to plead guilty where he has a stateable defence, and secondly, increasing the discounts allowable might undermine public confidence in the justice system. The court observed that to allow a greater discount in the current emergency situation would discriminate unfairly against prisoners who were sentenced before the lockdown.