APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Reed Lord Hardie Lord Marnoch	[2011] HCJAC 2 Appeal No: XC301/10 OPINION OF THE COURT delivered by LORD MARNOCH in APPEAL AGAINST SENTENCE by PAUL BALGOWAN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Shead; Plenderleath Runcie, Aberdeen

Respondent: Cherry Q.C.; Crown Agent

12 January 2011

[1] This is an appeal against sentence in which the only ground now insisted in is ground 2 which is in the following terms:

"2. The learned trial judge failed to take proper account of the fact that the appellant had formally tendered a plea of guilty to culpable homicide at the preliminary hearing. The basis of the plea tendered by the appellant was entirely consistent with the ultimate verdict of the jury, i.e. that the appellant stabbed the deceased. The Crown had rejected the appellant's plea to culpable homicide and it was plain to the appellant that said plea would not be accepted if he renewed it later in the proceedings. The learned trial judge failed to take into account the utilitarian value in the plea tendered at the preliminary hearing."

[2] That ground of appeal is accurate, so far as it goes, but what is not stated there is that when the restricted plea of guilty was rejected the appellant then intimated a Special Defence of Self Defence. Not only that, but at the ensuing trial for murder he was allowed to withdraw that Special Defence and substitute a Special Defence of Incrimination, which latter defence was thereafter persisted in throughout the trial.

[3] It is, we think, reasonably well settled that the objective of the statutory provisions relied on by the appellant, namely Section 196(1) of the Criminal Procedure (Scotland) Act 1995, as amended, was no more nor less than utilitarian in the sense that by encouraging pleas of guilty it was hoped that considerable amounts of public time and expense would be saved as well as sparing witnesses the trouble, expense and, on occasion, distress of attending court and giving evidence. Although reference has also been made, in this context, to the possible importance of contrition, that has always been a relevant consideration for a sentencing judge and was plainly not the reason for the legislation. Insofar, therefore, as the provisions in question are founded in expediency it is hardly surprising if they do not lend themselves easily to legal analysis or, for that matter, comparative justice. Nonetheless, the working out of these provisions has been left to the judiciary rather than the legislature.

[4] In the earlier decisions of the court on this matter, particularly Du Plooy v HM Advocate 2003 SCCR 640, guidance was given as to how Section 196(1) should be applied in the ordinary situation where the plea in question is accepted. However, the next step was to examine the application of the Section, if any, to the situation where a restricted plea is tendered and rejected and that, indeed, was, in part, the subject matter of the leading case of Spence v HM Advocate 2007 SCCR 592.

[5] At this stage it is appropriate to set out in full Section 196(1) since much turns on its particular structure and wording:-

"In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court shall take into account-

(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

(b) the circumstances in which that indication was given."

In Spence one thing the court made clear, in our opinion, was that before the section could be invoked at all there had, at some stage, to be a recorded plea of guilty. In emphasising that requirement the court was doing no more than echoing the opening words of the subsection. Section 196(1) does not apply unless "an offender...has pled guilty to an offence"; and, in the context of the 1995 Act, the words "pled guilty", albeit habile to cover a partial plea, can only be understood as referring to the tendering of a plea of guilty to the court. Provided that requirement is satisfied, however, the court is required to take into account "the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty": something which he may not have done until the plea was tendered, or may have done prior to the tendering of the plea. The most obvious example of such an indication is the intimation to the Crown Agent that an accused "intends to plead guilty" in terms of section 76(1) of the 1995 Act. That intimation is not itself a plea of guilty, but it is to be taken into account, in accordance with section 196(1), provided a plea of guilty is subsequently tendered. Thus the effect of the plea, in terms of discount, may well draw back to a much earlier stage in the proceedings. It is to be noted that what is required is an indication of an "intention" to plead guilty, not merely an enquiry as to the Crown's attitude in the event that a plea of guilty were to be tendered, or an indication of a possible willingness to plead guilty on a particular basis. The desirability for as early intimation as possible of that intention to plead guilty and for as much detail and clarity as possible in the expression of that intention, as also the importance of its remaining constant, is fully dealt with in Spence and we do not find it necessary to further elaborate on that aspect of the subsection other than to say that the clearest manifestation of that intention, as soon as it is available, will be a formal plea duly tendered and recorded.

[6] But, as is also made clear in Spence, the utilitarian value of a partial plea of guilty depends on the stance which it represents being adhered to throughout the proceedings, not least by the plea being recorded or again recorded at the outset of the trial diet thereby indicating that, even if the plea is rejected, the contentious issues at trial are likely to be restricted in ambit. Indeed, the natural corollary should be that uncontroversial evidence will be agreed as provided for under Sections 257 and 258 of the 1995 Act and that, one way or another, the duration of the trial will be materially shortened.

[7] Several results follow. In the first place, and despite a remark to the contrary made obiter in Spence, even if the restricted plea is not in the end vindicated by the verdict of the jury, it will still, in our view, be open to the accused to argue for an appropriate discount to reflect the utilitarian value of his plea as just described. Correspondingly, if, when the plea is rejected, the accused takes advantage of the trial to advance a substantive defence inconsistent with the restricted plea, the entitlement to any discount will almost certainly be lost.

[8] Secondly, if a rationale is required for insistence on a formal plea, as opposed to enquiries made of the Crown on a hypothetical basis or even an unambiguous offer to plead guilty, it is quite simply that neither of these courses of action carry with them the same implication as a recorded plea. On the contrary, if these overtures are rejected the assumption will be that what is in view is an unrestricted trial.

[9] Thirdly, insofar as they differ from the foregoing analysis we must respectfully disagree with the dicta contained in para [21] of HM Advocate v Booth 2005 SCCR 6. These dicta are, however, obiter in that they are expressed in a case where the guilty plea in question was accepted by the Crown and where the issues canvassed in Spence and in the present case were, as a result, in no way focussed.

[10] Fourthly, the decision in HM Advocate v Simpson 2009 SCCR 554 can, we think, no longer be regarded as sound insofar as the court there purported to give a discount under Section 196(1) despite the absence of any recorded plea of guilty and the fact that the accused in the end went to trial on a substantive plea of self defence - an approach which, somewhat surprisingly, the Crown appears to have encouraged. Ordinarily the court as presently constituted would not be in a position to make such a pronouncement but there is this peculiarity, namely that in Simpson the court did not intend in any way to depart from the guidance given in Spence but on the contrary purported to follow that guidance. In that situation, we do not think it necessary that any larger court be convened.

[11] Lastly, reverting to the circumstances of the present case, it will be apparent that, although a restricted plea was recorded at a preliminary hearing on 18 November 2009, it was not thereafter adhered to. On the contrary, when that plea was rejected by the Crown, the accused lodged a Special Defence of Self Defence. Moreover, at the commencement of the trial he was allowed to withdraw that special defence and substitute a Special Defence of Incrimination which was thereafter insisted in throughout the trial. It follows that no utilitarian benefit whatsoever resulted from the tabling of the restricted plea. This appeal must accordingly be refused.