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Clarification on when a Judge can reject a plea in mitigation without supporting evidence

At Inverness Sheriff Court in January 2015, the appellant pled guilty to two charges; that on 7 October 2014 he had a knife in his possession and that he assaulted a police officer by pushing her to the ground. For these charges, he was sentenced to one years imprisonment and 23 weeks imprisonment in respectively.

During the plea in mitigation, it was heard that the appellant was in possession of the knife because he had taken it from a neighbour who was behaving in an aggressive manner. The court heard that when the appellant encountered the police he panicked and ran off, accidently pushing over an officer. At the time, no explanation was given to police that the appellant had disarmed an aggressive neighbour.

Evidence was led to support the plea, but the Sheriff rejected the explanation in mitigation for three reasons, including that no explanation as to why he had the knife was given at the time of the incident.

On appeal, the court noted that in most cases, Sheriffs will proceed on the basis of statements made in the plea of mitigation, where such statements do not contradict the plea of guilty or the Crown case and are not ‘manifestly absurd’

The court then affirmed the 1997 case of McCartney v HMA where it was held that if the court does not feel it can accept what is said in the plea in mitigation, the court should make this clear to the defence so that they can seek the opportunity to have a proof in mitigation.

Ultimately, it is a matter for the court’s discretion to advise the defence that the court is not prepared to accept what has been said it mitigation in the absence of proof.
The Appeal court refused the appeal and held that the Sheriff had good reason to question the plea in mitigation and, having heard the evidence, gave a reasonable explanation of why he did not accept it.

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