Council offers views ahead of parliamentary debate on sentencing

26 February 2019

The potential impact of sentencing guidelines being introduced which have not been properly considered and tested would be considerable, according to the Scottish Sentencing Council, which has stressed the importance of taking an evidence-based approach, involving appropriate levels of research and consultation.

The Council was responding to a motion for debate in the Scottish Parliament on Wednesday 27 February 2019, concerning sentencing policy in general and the Council's work programme.

Lady Dorrian, Lord Justice Clerk and Chair of the Scottish Sentencing Council said: “We welcome parliamentary interest in our work, and agree that transparency and consistency in sentencing are vital. In Scotland's first sentencing guideline, approved by the High Court last year, we set out both concepts as underpinning all sentencing decisions. The Principles and Purposes of Sentencing guideline states that "reasons for sentencing decisions must be stated as clearly and openly as circumstances permit", and that "sentencing decisions should treat similar cases in a similar way, assisting consistency and predictability".

“However, the guideline also notes that treating cases similarly does not mean that they should be dealt with in exactly the same way. Each case is unique, and variations in sentencing will occur as a result of the presiding judge taking into account the particular circumstances arising. For this reason, we consider it undesirable to use decisions in individual cases as the rationale for changing sentencing policy in general. Such an approach would be unlikely to promote consistency, predictability, or transparency.”

 

The Council recognises that sentencing can be seen as a confusing and complex topic, and considers its role in raising awareness and understanding to be extremely important. That is why, in addition to setting out the general principles and purposes of sentencing, the Council is currently working on a guideline explaining the sentencing process, setting out the steps which judges take in making a sentencing decision and the various factors which may be taken into account. This guideline will be issued for public consultation this year, along with a guideline on the sentencing of young people.

While the establishment of any new organisation inevitably takes time, the Council’s work programme is now progressing well. Work on four guidelines is currently underway, relating to the sentencing process, causing death by driving, sentencing young people, and environmental and wildlife crime, all of which the Council aims to complete during the 2018-21 business plan period.

 

The Council has also started work on two additional guideline topics, sexual offences and sentence discounting, and has announced plans to carry out preparatory work on domestic abuse once the new offence comes into force.

Lady Dorrian added: “With regard to the timing of the Council's work programme, we recognise the desire to have sentencing guidelines in place as quickly as possible. However, the potential impact of guidelines which have not been properly considered and tested is considerable, both for individual cases and for the justice system as a whole. That’s why we took an early decision that our work should be evidence-based, involving appropriate levels of research and consultation, including public consultation on all guidelines.

“We have committed to taking the necessary time to understand current practice, to look at what works and why, and to listen to those involved in and affected by sentencing decisions, including victims. This means that guidelines will take longer to develop, but to do otherwise would not, in our view, be an appropriate way to approach a task of such importance.

“In relation to sexual offences and the suggestion that the relevant guidelines be expedited, we would note that this is a wide ranging, sensitive, and complex topic, which will require careful consideration. While we do not anticipate guidelines on sexual offences being finalised during the current business plan period, this is not a delay but simply reflects the Council’s current work programme and the likely work involved in addressing this subject. We have already held initial discussions with the judiciary and with a range of organisations with interest and experience in the sentencing of sexual offences, including victim support organisations, and we have begun research into public views in this area. It is likely that the Council will develop multiple guidelines on sexual offending, and we hope to announce the areas of initial focus soon. However, given the seriousness and sensitivity of such offences, it is vital that any guidelines we produce are well-researched and fit for purpose.  

“We continue to welcome views on our work programme and on sentencing in general. By developing clear and transparent sentencing guidelines and through our wider work, we believe the Council can promote further consistency in sentencing practice, assist public understanding, and help inform debate about sentencing.”

The letter issued to Daniel Johnson MSP in response to his letter of 14 February, previously published by the Scottish Labour Party, can be found here.

More information about how the Council goes about developing sentencing guidelines, which is not dissimilar to the process of developing legislation, can be found here