HMA V ANTHONY HERD 2017
Anthony Herd who pleaded guilty to assault at a trial date having previously offered to plead has successfully appealed against the sentence imposed after challenging the level of discount given by the sentencing sheriff. The Appeal Court ruled that the sheriff “misdirected” himself. The accused pleaded guilty to a single charge of assault on the original indictment, under deletion of the words “fire an item from a crossbow at him striking him on the head”. This was accepted which was accepted by the Crown.
The sheriff selected a headline sentence of 13 months’ imprisonment, which he discounted to a period of 11 months and two weeks by virtue of s196 in light of his guilty plea. However, the appellant was granted leave to appeal based on the procedural history of the case. On 10 May his solicitor met with a procurator fiscal depute in order to discuss the case and made an offer on the accused’s behalf to plead guilty and thereafter an email was sent setting out the terms.
In due course the appellant was served with an indictment which cited him to a first diet, at which the appellant’s solicitor again offered to plead in the terms set out in the email – but the offer was again rejected. It was not until the trial diet the plea of guilty was finally accepted.
The first instance Sheriff took the view that that there was nothing to stop the Mr Herd entering a plea of guilty under deletion at either of the first diets or explaining his position in the defence statement. However, Mr Herd’s solicitor advocate, Ms Ann Ogg, stated that offers to plead guilty had been made on his behalf by his solicitor, both orally and in writing to the Crown very clearly at various stages on par with the terms finally accepted. It was argued that the Sheriff had been wrong in declining to take account the case history.
Delivering the Appeal Court’s opinion, Lord Turnbull remarked: “In our opinion, these are circumstances which the sheriff ought to have been prepared to consider in determining how to exercise his discretion in relation to discount of sentence. Since he declined to do so, we are satisfied that he misdirected himself in the exercise of his discretion and that we can determine the matter of discount for ourselves.”
As a result the sentence was quashed and in its place the appeal court imposed a headline sentence of nine months and three weeks. As the sheriff did, they also then deducted from that a period of two months to reflect the time spent on remand by the appellant resulting in a sentence of seven months and three weeks.