Public consultation on first sentencing guideline in Scotland

By John Scott QC Solicitor Advocate, solicitor member of the Scottish Sentencing Council

Sentencing is a very important part of the work of our courts and it often features in our daily news, whether on TV, online or in print. It can sometimes provoke curiosity, concern or controversy. We seek to assist with this.

Today sees the launch of a public consultation on Scotland’s first sentencing guideline, which will influence the way offenders are sentenced in our courts.

The Scottish Sentencing Council has developed a draft guideline on the overarching principles and purposes of sentencing for all offences and is seeking views from members of the public.

The Council, which is made up of judicial, legal and lay members, was set up as an independent advisory body to promote consistency in sentencing across Scotland. An essential part of our work is to prepare sentencing guidelines for the courts.

As a first step, we decided to develop a guideline setting out the principles and purposes of sentencing.

Although some guidance exists in the form of court decisions in particular cases, this will be the first time that a comprehensive definition has been provided for the principles underlying sentencing decisions and the purposes they seek to achieve.

It has been suggested by some that these are already well known in Scotland and do not need to be formally defined. However, evidence collected during the development of the legislation that created the Council showed a wide range of differing views, with no clear agreement.

That is why we decided to make the principles and purposes of sentencing our first guideline. We believe it will increase transparency and promote consistency in sentencing, and help people to understand often complicated sentencing decisions. We have carried out significant background research, consulting widely with judges across Scotland, considering views on this topic in a range of jurisdictions, and engaging with interested organisations.

In drafting the guideline we did not think it would be practical or useful to create an exhaustive list and so we have aimed to capture the critical elements which are relevant to all sentencing decisions.

The consultation asks people to consider a core principle of ‘fairness and proportionality’ and a series of supporting principles which contribute to this.

Some of the supporting principles include:

  • similar offences should be treated in a similar manner
  • sentences should be no more severe than necessary
  • reasons for sentencing decisions should be stated clearly and openly.

The consultation further asks people to consider what purposes sentencing should seek to achieve, for example:

  • punishment
  • reduction of crime (including through rehabilitation)
  • giving offenders an opportunity to make amends.

Those who respond will have the chance to comment on both the content of the draft guideline and on how easy it is to understand. The guideline was designed to assist judges in court but also to help the public better understand how sentences are decided.

I would strongly urge you to take this opportunity to participate in the public consultation, available on our website, by the deadline of noon on Friday, 27 October.

This guideline is our first but more are being developed – we are currently working to prepare a guideline on the sentencing process, which will include the steps taken by judges and the different factors taken into account, and on the sentencing of young people.

Our first offence-specific guidelines, as announced in our Business Plan, will be on death by driving, and wildlife & environmental crime.

We also welcome views on what other guideline topics we should consider in the future.

For more information about sentencing matters, including how judges decide sentences, see our comprehensive and accessible About Sentencing website resources. We also have introductory videos about sentencing in Scotland, and an interactive scenario that lets people choose what happens next in a realistic court case, and then select the sentence they would give – if they were the judge.

ENDS

The Sentencing Commission for Scotland referenced Chapter 9 of Sheriff Principal Gordon Nicholson, Sentencing (2nd edition, W. Green 1992) and Lord Brodie’s Opinion in Dempsey v Parole Board for Scotland 2004 SLT 1107 by way of example.

[1] The Criminal Justice and Licensing (Scotland) Act 2010

[1] The Scottish Government consultation and responses are available at

http://www.gov.scot/resource/doc/236809/0064977.pdf and http://www.gov.scot/Publications/2009/01/26131348/0