Wednesday, December 21, 2011
Lord Gill condemns the ‘right’ of criminals to a lower sentence if they used the section 196 (1) to get a reduction, we don’t live in an ideal world
There is good law and bad law, and law that sometimes help the wheels of justice move more smoothly.
In Scotland there is such a law called the Criminal Procedures Scotland Act 1995, under section 196 (1) if an accused person pleads guilty early thus stop wasting the court’s time; they get a reduction in their sentence.
You can debate the moral rights or wrongs of that principle, but the law exists for good reason, Courts are under pressure and this helps ease this, if the law is ignored then there is no reason to plead guilty early.
This will lead to backlogs.
Lord Justice Clerk Lord Gill isn’t a fan of this law and has warned shortening sentences for those who admit crimes could erode public confidence in the justice system.
He goes further by calling for courts to take a tougher line when sentencing.
This is all good traditional Tory stuff from an age long since dead.
Defence lawyers who in theory have to do the best for the clients have warned removing incentives to plead guilty quickly will result in more contested charges and trials.
They are right, why plead guilty when you get the same sentence and maybe you might get off with it.
A five-judge bench at the Court of Criminal Appeal in Edinburgh has been taking another look at this question by considering a number of test cases and has questioned the right to discounts for an early guilty plea.
I would opine that in the interests of a properly functioning judiciary, it is important that this matter is not sidetracked into some emotional rant.
Lord Gill said the discounts of one-third being allowed as a matter of routine were the result of a "superficial reading" of the unspecified 1996 case.
"So it is opportune to repeat that an accused is not entitled to any particular discount in return for a plea of guilty. The level of discount, if any, is and must always be a matter for the discretion of the sentencer."
I would say that this is wrong, case law would support allowing and retaining such a practice.
The expectation of a sentencing discount of up to one-third of the sentence was enshrined in Scots law for the first time in October 2003.
At the time of Lord Cullen's review this idea appeared to have come from the then Scottish Executive's proposals for High Court reform and Lord Bonomy's recommendations to speed up the justice system.
Because it argued that there should be a "predictable" reduction in sentence if an accused pled guilty at an early stage.
Then in an appeal court case in 2003, known as Du Plooy, the position was clarified so that sentencers should consider discounts of up to one-third in such cases.
And life went on the Courts were able to increase volume under an already overstretched system.
The argument advanced for discounts was they spared witnesses from having to give evidence, and saved court time and expense.
How can this now be seen as a bad idea?
And why should anyone be stupid enough to want to return to chaos because someone wants their pound of flesh?
Scottish criminal lawyer Paul McBride described Lord Gill's warning as "provocative", adding there had to be incentives to pleading guilty to prevent overburdening courts with trials.
I am not a Paul McBride fan but however we do travel along the same train of thought sometimes.
"I agree people should not be entitled to anything automatically, but let's give the courts the discretion to apply their common sense and give people an appropriate discount and encourage them to plead guilty at the earliest opportunity to spare the victims the agony of having to go through a trial.
"It's certainly a very provocative thing for him to say and he will fully understand the implications of it. If accused people understand they won't get a discount if they plead guilty, what on earth is the incentive for them to plead guilty?
McBride rightly says:
"If you give them no incentive you will end up having more and more trials, and the courts are finding it difficult enough to cope at the moment in an ideal world of unlimited resources and unlimited judges and unlimited lawyers then no-one would get any discount for pleading guilty. We are not in that world."
As General Mick Jackson used to say, ‘we are where we are’.
Lord Gill said something interesting when he went on to warn of the danger a discount might cause an accused to plead guilty, even when they had a fair defence. Innocent people by enlarge don’t plead guilty so the idea that someone would do so is strange particularly when they have legal representation. I think that this is crap.
"The second risk is the allowance of substantial discounts may cause the sentencing decisions of the criminal courts to lose credibility and in this way may erode the authority of the courts."
Since when does applying current law do this? And the authority of the courts isn’t in any way weakened, bad judgement in criminal cases such as the Cadder ruling do much more damage because Cadder showed some judges to be incompetent and unfit to be on the Appeal Court Bench.
Cadder was a straightforward violation by the Courts, the Crown and the Police of human rights denial.
This was set right by the UK Supreme Court who made Scotland human rights compliant on that issue.
Lord Gill continued:
"I consider the court's discretion to allow a discount should be exercised sparingly and only for convincing reasons."
Can Lord Gill front the costs of increased expenditure for the problem he is trying to manufacture or does he believe that closing one third of Scotland’s Sheriff Courts is going to produce a tsunami of funds to cover this.
I would like to see competence tests rather like academic exams introduced for judges and others who sit in the Courts passing judgments; this should include a psychological assessment on whether or not they should be there in the first place.
We need a clear legal framework for the Courts to operate under to produce a fair and just system that functions at an optimal level or as close to it as possible.
This crap has disaster written all over it and the Justice Minister Kenny MacAskill should take no notice of this, we want quick trials not having accused people getting ‘second mortgages’ and planning permission to build extensions to the court because they are there so long.
The Campaign for Human Rights at Glasgow University