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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> GALLAGHER, NOTE OF APPEAL AGAINST SENTENCE BY STEPHEN ANTHONY GALLAGHER AGAINST PROCURATOR FISCAL, GLASGOW [2018] ScotHC HCJAC_51 (06 September 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_51.html
Cite as: [2018] ScotHC HCJAC_51, [2018] HCJAC 51
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Drummond Young
Lady Clark of Calton
[2018] HCJAC 51
HCA/2018/400/XC
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in the
REFERENCE BY THE SHERIFF APPEAL COURT
under section 175A of the Criminal Procedure (Scotland) Act 1995
of
NOTE OF APPEAL AGAINST SENTENCE
by
STEPHEN ANTHONY GALLAGHER
Appellant
against
PROCURATOR FISCAL, GLASGOW
Respondent
Appellant: Keenan (sol adv); Capital Defence Lawyes (for Graham Walker, Glasgow)
Respondent: Lord Advocate (Wolffe QC), K O’Mahony AD; the Crown Agent
4 September 2018
[1] This Opinion should be read in conjunction with that in Wilson v Procurator Fiscal,
Aberdeen [2018] HCJAC 50.
Page 2 ⇓
2
[2] On 6 April 2018, at a trial diet in Glasgow Sheriff Court, the appellant pled guilty to a
charge of being in charge of a vehicle with an excess amount of alcohol in his breath; the
reading being 74 microgrammes in 100 millilitres of breath (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. The sheriff did not discount the period of disqualification
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”.
[3] The Sheriff Appeal Court has referred the case to the court on the following
questions, which are answered for the reasons given in Wilson v PF Aberdeen (supra) as
follows:
(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.
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.
(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?
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3
No. A “discriminating” approach to discount, in so far as this is taken to mean the
application of different discount rates for different parts in the one sentence, is not normally
legitimate.
(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?
No.
[4] The court will remit the appeal to the Sheriff Appeal Court for further consideration
in light of the court’s answers to the reference. In that regard, the sheriff has misdirected
himself in not discounting the disqualification at the same rate as the fine.