What the Law Says
The legal terms used on this page are explained in our jargon buster.
When deciding a sentence, a judge must first see whether minimum or maximum sentences have been set for the particular crime.
In many cases, the law sets out the maximum sentence that can be given for a particular crime or offender. For example, a person convicted of offensive behaviour at a professional football match on indictment cannot be sentenced to more than five years imprisonment, or a fine, or both. See the law.
In other cases, the law sets out the minimum sentence that must be given for a particular crime or offender. For example, if someone over the age of 18 is convicted in the High Court of a third drug trafficking offence, the law says that they must be sentenced to a minimum of at least seven years’ imprisonment.
Criminal cases are dealt with in different courts depending on how serious they are. It is up to the Crown Office to decide which court a case will be heard in. Maximum penalties are set by law for each court.
Justice of the peace court – up to 60 days’ imprisonment, fines up to £2.5K, and all community based sentences
Sheriff court summary (less serious cases) – up to 12 months' imprisonment, fines up to £10K and all community based sentences
Sheriff court on indictment (more serious cases) – up to 5 years' imprisonment, unlimited fines, and all community based sentences
High Court – unlimited imprisonment, unlimited fines, and all community-based sentences.
When sheriffs decide that the maximum sentence on indictment at the sheriff court level isn’t enough, they can send (remit) the case to the High Court for sentence.
Guideline Judgments by the High Court
Judges in the High Court, when it is sitting as an appeal court, have the power to make a decision in an appeal case that gives guidance to other judges about the appropriate sentence to use in similar types of cases. These judgments are known as ‘guideline judgments’. There are only a few of these in Scotland.
See our Guideline Judgments page for a full list and further information.
Judges may also look at decisions made by other sentencing judges in similar situations, known as case law. Doing this can help the judge select the most appropriate sentence and can also promote consistency.
Courts can further look at sentencing guidelines prepared by the Sentencing Council for England and Wales. Scottish judges do not have to follow these guidelines, but they can be useful to make comparisons.
In the future, the Council in Scotland will also produce guidelines that Scottish judges will need to take into account when sentencing.