|
Should a judge reduce a driving disqualification if the defendant pleads guilty? |
In most cases, somebody who pleads guilty to an
allegation will receive a reduction in the length of the sentence imposed upon
them, this is because section 144 of the Criminal Justice Act 2003 requires the
sentencing court to take into account when the guilty plea was entered and the
circumstances of the plea.
Criminal solicitors often talk about a defendant being
“entitled to a sentence discount” in return for a guilty plea, this is not a
true reflection of the law but in practice most courts will give a reduction to
most offenders.
As this is a blog dedicated to drink driving law, we
should look at what happens in those cases specifically and what we find is
that the courts have historically being reluctant to discount the
disqualification portion of sentences imposed upon drink drivers. This is because many solicitors and judges consider
the disqualification to be ancillary to the sentence rather than part of it.
I take the view that this approach is incorrect. While a driving disqualification can be an
ancillary order, (e.g. section 301 Criminal Justice Act 2003 allows a court to
impose a driving disqualification where somebody fails to pay their court
fines) that does not mean that it must always be so. In this post I will set out the law both at home in England and Wales, in Scotland and the position according to the European Court of Human Rights .
Domestic law
First, if we look at the Road Traffic Offenders Act 1988,
we find that Act gives the power to courts to impose penalty points and
disqualification and it is worth noting that both powers are to be found in
Part 2 of the Act, which is headed “SENTENCE”.
This to my mind is a strong suggestion that Parliament intended the
driving disqualification to be part of the sentence and not an ancillary order.
Secondly, we can look at the case of Gemmell v HM’s Advocate; this is a Scottish appeal case in which
the court was asked to rule whether a driving disqualification and penalty
points formed part of the sentence. Lord
Justice Clerk headed a five judge panel and held, “[i]n my opinion, a period of disqualification from driving is a penalty…
As such it is a ‘sentence… or other disposal or order.’” He went on, “I consider that sentence discounting applies also to the imposition of
penalty points for road traffic offences… The imposition of penalty points is a
form of order that falls within the ambit of section 196.” It should be noted that the court was
considering the same Road Traffic Act and Road Traffic Offenders Act that is in
force in England and Wales. Also, the
section 196 that Lord Justice Clerk refers to is the Scottish law version of
section 144 of the Criminal Justice Act 2003; the relevant sections, contain
identical wording.
Lord Eassie expanded on Lord Justice Clerk’s view in the
same case saying, “I… agree with the view
which is held by your Lordship in the Chair that being banned from driving or
receiving penalty points are not distinguishable in principle from sentences
generally when questions of discounting arise. Being disqualified from driving
is a restriction on the liberty which the offender would otherwise enjoy to
drive a motor vehicle; commonly presents substantial inconvenience; and may
have financial consequences including the loss of employment.”
Decisions by Scottish courts are not binding on those in
England and Wales but, where such senior judges have provided such detailed and thought
out opinions they should not be ignored, although they frequently are in
certain magistrates’ courts.
To the best of my knowledge no English court has directly
considered whether a driving disqualification imposed on a defendant convicted of
drink driving should be subject to the reduction in sentence commonly given;
however, the case of R v Geale gives
the matter a passing thought. Geale is concerned with the sentence of
a coach driver convicted of causing death by careless driving and whether a
reduction in disqualification should be given if the driving disqualification
is going to impact upon the offender’s livelihood. But, the court does say in passing (or
“obiter” as solicitors prefer to say) that the purpose of disqualification is to
protect the public from the risk of re-offending, “[h]owever, such risk is not
the only relevant criterion… In addition, there is or maybe an element of
punishment; as is apparent from the fact that, even where the future risk is
nil, the statutory provisions require a 12 month minimum period of
disqualification.” Although the
court was talking about death by careless driving, the statutory provisions
also require a 12 month minimum period of disqualification in drink driving
cases.
Finally, when we look at the sentencing guidelines we see
that the disqualification period is listed as part of the sentence and not
under the section of the guideline that deals with ancillary orders.
Law from the European Court of Human Rights
The case of Welch v The United Kingdom involved a drug
dealer attempting to convince the European Court of Human Rights that a
confiscation order formed part of his sentence.
He lost, but the court considered when a court order is a penalty rather
than anything else - and, if it is a penalty, then it must follow that it forms part of the sentence imposed upon that individual.
First, they told us that
a penalty is an “autonomous Convention concept”, which is to say that it does
not rely on the domestic law of any of the Convention states, in other words it
doesn’t much matter what domestic law thinks of the order in question. Secondly, the Court tells us that when
deciding if a court order is a penalty the first thing you must consider is
whether “… the measure in question is
imposed following conviction for a ‘criminal offence’”. If it is then you consider other factors,
such as:
·
Nature and purpose of the order;
·
It’s characterisation under national law;
·
Procedures involved in marking and implementing
the order; and
·
It’s severity
In the case of a driving disqualification, there can be
no dispute that a driving offence is a criminal conviction. What is the purpose of the disqualification? According to R v Geale the purpose of the disqualification is to protect other
road users, but even the Court in Geale accepts
that there is an element of punishment to the disqualification and Gemmell describes the disqualification
as a deprivation of liberty. What is the
procedure for making and implementing the order? The disqualification is imposed after conviction
and during the sentencing portion of the case.
The court hears mitigation and varies the length of the disqualification
accordingly, just as it does with any other sentence. Once imposed, the disqualification is
enforced through the immediate seizure of the defendant’s driving licence and
the circulation of the disqualification to police forces nationwide. How severe is the sentence? In some cases, it will cost the defendant
their job and their home; that seems pretty severe to me.
In Malige v France
the European Court of Human rights considered whether the deduction of points
(apparently in France a driving conviction loses you points rather than gaining
them) amounted to a penalty. The Court
echoed the thoughts of our own Court of Appeal in Geale when they said that, “…
although the deduction of points has a preventive character, it also has a
punitive and deterrent character and is accordingly similar to a secondary
penalty. The fact that Parliament
intended to dissociate the sanction of deducting points from the other
penalties imposed by the criminal courts cannot change the nature of the
measure.”
Based on Welch and Malige, we can see that the European Court of Human Rights views both driving disqualifications and the imposition of penalty points as part of the sentence imposed on a guilty defendant.
Conclusion
It is clear that the European Court of Human Rights views disqualifications and points as part of the sentence, just as the Scottish court of appeal did when they considered the same issue.
English courts have not explicitly said that driving
disqualifications are part of the sentence or that they should be reduced after
a guilty plea - and many magistrates refuse to believe that it is - but given the authorities from Scotland and Europe it seems
inevitable that they will eventually have to accept that driving
disqualifications can indeed be reduced.