Stephen Anthony Gallagher v. Procurator Fiscal, Glasgow [2018] HCJAC 51

Reference by the Sheriff Appeal Court under section 175A of the Criminal Procedure (Scotland) Act 1995 re note of appeal against sentence:- On 6 April 2018, at Glasgow Sheriff Court, the appellant pled guilty to a charge of drink driving contrary to section 5(1)(a) of the Road Traffic Act 1988. The appellant was fined £325 discounted form £400 to reflect the early plea of guilty and disqualified from driving for 18 months, that period of disqualification not being discounted, the sheriff being of the view that it was not in the ‘public interest’ to do so. The SAC referred the case to the High Court and posed the following questions:- “(1) 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; (2) In keeping with the court’s discretion on matters of discount, may the court adopt a discriminating approach to discount over separate penalties in road traffic cases?; and (3) May the court take account of public interest considerations such as road safety or public protection when considering whether to discount road traffic penalties, in this case disqualification, and in determining what level of discount to apply to same?” In relation to the first question posed the court stated that all penalties in the same case (of which fines and periods of disqualification both were) should be discounted in approximately the same way following a plea of guilty. The court made clear that, other than in exceptional cases, the rate of discount should be the same across all elements of a sentence and any discrepancy would require to be fully reasoned and set out. Similarly, in relation to the second question posed by the SAC the court answered in the negative and stated that it is not normally legitimate for different levels of discount to be applied to different elements of the sentence. In relation to the third question posed the court also answered in the negative and reiterated that the only factor to be taken into account in determining the level of discount to be applied is the utilitarian value of the plea and issues of road safety or public protection were irrelevant. The court remitted the case back to the SAC with the direction that the sheriff had misdirected himself in not discounting the disqualification rate at the same level he had the fine.