Michael Bowman v. Her Majesty’s Advocate [2018] HCJAC 42

Note of appeal against sentence:- The appellant was indicted, along with 8 other accused, in relation to 28 charges alleging involvement in organised crime. On 24 November 2017, at Glasgow High Court, at a continued preliminary hearing, the appellant’s plea of guilty to an amended charge 1 was accepted by the Crown. Charge 1 was a contravention of section 28(1) of the Criminal Justice and Licensing (Scotland) Act 2010, namely, being involved in serious organised crime and doing things which he knew or ought reasonably to have known or suspected would enable or further the commission of serious organised crime. The amended charge which the appellant pled guilty to related to conduct between 16 March 2016 and 20 January 2017. The charge was aggravated by the appellant being on bail. On 22 January 2018 the sentencing judge selected a headline sentence of 8 years imprisonment including 6 months for the bail aggravation discounted to 7 years on account of the plea of guilty. The appellant was granted leave to appeal in relation to the level of discount given. The sentencing judge reported to the court that the plea was tendered at the fourth preliminary hearing and was not much earlier than a plea tendered at a trial. The judge stated that the appellant had not tendered a plea at any of the previous callings of the indictment and, in referring to Spence v HMA 2008 JC 174, any discussions which took place were in private between the Crown and those acting for the appellant and did not meet the criteria in Spence where it was stated:- “...there must be an unequivocal indication of an intention to plead guilty by tendering a plea at preliminary hearing and adhering to it or by section 76 letter”. Here it was submitted on behalf of the appellant that the sentencing judge had erred in his interpretation of what was said in Spence as the court there had simply indicated examples of methods by which an accused person could convey an unequivocal intention of his position to the Crown. The procedural background was that prior to the first preliminary hearing on 4 August 2017 the representatives of the appellant met with the Crown and intimated that he was prepared to plead guilty to an amended charge 1. That offer was rejected by the Crown. Further discussions took place between the appellant’s agents and the Crown following the preliminary hearing and on 31 August 2017 the same offer was made and again rejected by the Crown. On 5 September 2017 the Crown wrote to the appellant’s agents setting out the terms of the plea of guilty they would be prepared to accept from each of the accused. In relation to the appellant the Crown sought a plea of guilty to charges 1 and 14. The second preliminary hearing took place on 29 September 2017 when a further preliminary hearing was fixed for 3 November. Further discussions took place and on 27 October 2017 a meeting took place when the Crown confirmed for the first time that a plea of guilty from the appellant to an amended charge 1 would be acceptable. On 2 November the appellant gave instructions to plead in those terms and it was agreed that the plea would be tendered. The preliminary hearing which had been scheduled for 3 November 2017 was postponed to allow the Crown to continue discussions with the appellant’s co-accused and to allow others to continue with trial preparations. A further preliminary hearing took place on 21 November 2017 but the discussions between the Crown and the other accused had not been completed and a further continued preliminary hearing was fixed for 24 November when it was agreed between the Crown and the appellant’s representatives that he would tender his plea of guilty on 24 November which he duly did. It was submitted on behalf of the appellant that for the purposes of determining the point when the discount should be calculated it should be when the appellant conveyed an unequivocal indication of his position, namely, 2 November 2017 rather than the date on which the plea was actually tendered. Here the court agreed with the submissions made on behalf of the appellant and allowed the appeal. The court stated that the unequivocal indication by an accused can be conveyed either to the Crown or to the court for the purposes of calculating the level of discount to be allowed. The court considered that the appropriate date for basing the calculation of the discount was 2 November 2017 and quashed the sentence imposed and substituted a headline sentence of 8 years imprisonment discounted by around 20% to a period of 6 years and 6 months.