The Council grew out of recommendations made by the Sentencing Commission for Scotland, a judicially-led group set up by the Scottish Executive in 2003.
The Commission was given the remit of examining consistency in sentencing across Scotland, and carried out a broad scope of research including studies of other sentencing bodies from as far afield as New Zealand and the USA. It concluded that, even though there was little evidence to show widespread inconsistency in sentencing, the public had a perception of inconsistency and this in itself should be addressed.
‘The Scope to Improve Consistency in Sentencing Report – 2006’ recommended that a sentencing body be created “in the interests of transparency” to introduce sentencing guidelines. The Commission’s Chair, Lord Macfadyen, said in his foreword: "Consistency in sentencing is important not only to the offender, but also to those directly affected by the crime and to the public, since a perception of inconsistency in sentencing is likely to lead to a loss of public confidence in the criminal justice system.” He said that guidelines would “promote and encourage consistency of approach” while “preserving the important element of judicial discretion”.
Consultation and legislation
The Scottish Government opened up the Commission’s recommendations to public consultation in 2008, receiving more than 40 responses provided by individuals and groups from the legal sphere and beyond. The majority of these responses were in favour of the proposals.
The Criminal Justice and Licensing (Scotland) Bill was introduced in the Scottish Parliament in 2009 covering three main issues: sentencing, criminal procedure, and licensing. It contained more than 80 different policy proposals including the creation of the Scottish Sentencing Council. The Government stated that the new body would “help ensure greater consistency, fairness and transparency in sentencing and thereby increase public confidence in the integrity of the Scottish criminal justice system”.
The Criminal Justice and Licensing (Scotland) Act 2010 was later passed and the Scottish Government determined to establish the Council by spring 2016. Subordinate legislation laid the ground work for the launch including the appointment of 12 Council members and a Secretariat team.
The Council was officially established on 19 October 2015 as an independent, advisory body, and a launch event was held on 17 November. The Council met for the first time on 14 December and continues to hold quarterly meetings throughout the year (minutes are available on the website).
The following secondary legislation enables the Council to perform its functions:
The Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No.13) and the Courts Reform (Scotland) Act 2014 (Commencement No. 4) Order 2015 brought the Council fully into being on 19 October 2015 and enables the new Sheriff Appeal Court to require the Council to prepare and review guidelines in the same way as the High Court.
The Criminal Justice and Licensing (Scotland) Act 2010 (Supplementary Provision) Order 2015 was made on 17 November 2015 and gives the Scottish Courts and Tribunals Service power to make payments of expenses to Council members.
The Scottish Sentencing Council (Procedure for Appointment of Members) Regulations 2015, which regulate the process for appointing judicial and legal members to the Council, entered into force on 27 June 2015.
The Scottish Courts and Tribunals Service (Administrative Support) (Specified Persons) Order 2015, which gives the Scottish Courts and Tribunals Service responsibility for providing staff, services and property to the Council, entered into force on 27 June.
The Criminal Justice and Licensing (Scotland) Act 2010 (Commencement No. 12) Order 2015 established the Council as a legal entity on 7 May 2015.
The Public Records (Scotland) Act 2011 (Authorities) Amendment Order 2015 makes the Council subject to Part 1 of the Public Records (Scotland) Act 2011, which provides for the management of public records, and came into force on 17 September 2015.
The Courts Reform (Scotland) Act 2014 (Consequential Provisions) Order 2016 amends paragraph 3(1) of schedule 1 to the Criminal Justice and Licensing (Sc) Act 2010, as a consequence of the abolition of the judicial office of stipendiary magistrate.
The Scottish Sentencing Council (Submission of Business Plan) Order 2016 requires the Council to submit a three-year business plan to the Scottish Parliament.