The Scottish Sentencing Council must prepare sentencing guidelines for the consideration of the High Court of Justiciary, Scotland's supreme criminal court, which may approve them in whole or in part, and with or without modifications. Guidelines do not have effect unless approved by the Court.
The Council will have broad discretion as to the format and subject matter of sentencing guidelines. In particular, guidelines may cover:
- the principles and purposes of sentencing
- sentencing levels
- the particular types of sentence that are appropriate for particular offences or offenders
- circumstances in which guidelines may be departed from.
Effect of guidelines
When sentencing an offender, a court must have regard to any sentencing guidelines which are applicable in relation to the case. If the court decides not to follow the guidelines it must state its reasons.
Requests for guidelines
Where the High Court makes a guideline judgment (under the Criminal Procedure (Scotland) Act 1995) it may require the Council to prepare or review sentencing guidelines on any matter.
The Sheriff Appeal Court, as provided for in the Courts Reform (Scotland) Act 2014, will also be able to issue guideline judgments and when doing so, will be able to require the Council to prepare or review sentencing guidelines on any matter.
The Council must comply with any request from the High Court or Sheriff Appeal Court.
The Scottish Ministers may, at any time, request the Council to prepare or review sentencing guidelines on any matter. The Council must have regard to, but may decide not to comply with, a ministerial request. If the Council decides not to comply with a request by the Scottish Ministers it must provide them with reasons for its decision.
Assessing the impacts of guidelines
When preparing sentencing guidelines, the Council must also prepare an assessment of the likely costs and benefits of implementing the guidelines and an assessment of the likely effect on the criminal justice system generally.
Consultation on draft guidelines
Before submitting guidelines to the High Court for approval, the Council must publish them in draft form together with any relevant draft impact assessments. The Council must also consult the Scottish Ministers, the Lord Advocate, and any other people it considers appropriate.