Judge in warning on sentences

However, defence lawyers warned removing incentives to plead guilty quickly will result in more contested charges and trials, which will overburden already overstretched courts.

With its roots in a landmark appeal court ruling in 1996 and a change in the law, discount sentencing made it usual for guilty pleas provided at the first opportunity to reduce jail time and fines by up to one-third.

Now a five-judge bench at the Court of Criminal Appeal in Edinburgh has been taking another look at some of the issues involved by considering a number of test cases and has questioned the right to discounts for an early guilty plea.

Lord Gill said the discounts of one-third being allowed as a matter of routine were the result of a "superficial reading" of the unspecified 1996 case. He said: "So it is opportune to repeat that an accused is not entitled to any particular discount in return for a plea of guilty. The level of discount, if any, is and must always be a matter for the discretion of the sentencer."

The expectation of a sentencing discount of up to one-third of the sentence was enshrined in Scots law for the first time in October 2003, in a judgment by a panel headed by Lord Cullen, formerly Scotland's most senior judge.

The trigger for Lord Cullen's review appeared to have come from the then Scottish Executive's proposals for High Court reform and Lord Bonomy's recommendations to speed up the justice system.

These argued there should be a "predictable" reduction in sentence if an accused pled guilty at an early stage.

An appeal court case in 2003, known as Du Plooy, explained and clarified the fact sentencers should consider discounts of up to one-third in such cases.

The argument advanced for discounts was they spared witnesses from having to give evidence, and saved court time and expense.

Scottish criminal lawyer Paul McBride described Lord Gill's warning as "provocative", adding there had to be incentives to pleading guilty to prevent overburdening courts with trials.

"I agree people should not be entitled to anything automatically, but let's give the courts the discretion to apply their common sense and give people an appropriate discount and encourage them to plead guilty at the earliest opportunity to spare the victims the agony of having to go through a trial.

"It's certainly a very provocative thing for him to say and he will fully understand the implications of it. If accused people understand they won't get a discount if they plead guilty, what on earth is the incentive for them to plead guilty?

"If you give them no incentive you will end up having more and more trials, and the courts are finding it difficult enough to cope at the moment.

"In an ideal world of unlimited resources and unlimited judges and unlimited lawyers then no-one would get any discount for pleading guilty. We are not in that world."

Lord Gill's written judgment discussed how on appeals examined it was said "more than once" an early plea meant an accused was "entitled to a discount".

"That is a careless use of language but it reflects an approach that is prevalent in certain courts," he said.

That was the result of "a superficial reading" of the landmark 1996 case, he suggested.

Lord Gill suggested sentence discounting was a "pragmatic way of dealing with an administrative problem and of avoiding public expense".

He went on to warn of the danger a discount might cause an accused to plead guilty, even when they had a fair defence.

"The second risk is the allowance of substantial discounts may cause the sentencing decisions of the criminal courts to lose credibility and in this way may erode the authority of the courts," Lord Gill continued.

"I consider the court's discretion to allow a discount should be exercised sparingly and only for convincing reasons."