Limited revisions to guidelines for rape offences proposed
In March this year, two guidelines covering rape offences came into force. The Scottish Sentencing Council is now proposing limited revisions to these guidelines to take into account forthcoming amendments to legislation passed by the Scottish Parliament.
The amendments relate to the court’s consideration of non-harassment orders (NHOs) and are introduced by sections 107 and 108 of the Victims, Witnesses, and Justice Reform (Scotland) Act 2025, which come into effect on 1 September 2026.
The existing sentencing guidelines for the offences of rape, and rape of a young child, explain how NHOs operate. This is intended to assist the court as well as to increase public understanding of such orders in relation to these offences.
Section 107 of the Victims, Witnesses, and Justice Reform (Scotland) Act 2025, once amended, will among other things, expand the scope of section 234AZA of the Criminal Procedure (Scotland) Act 1995, with the effect of requiring the court, without an application by the prosecutor (as is currently the position), to consider making an NHO in cases to which the rape guidelines apply, with a presumption that such an order will be granted. This will bring the procedure to be followed for NHOs in rape (and other offences) into alignment with that for domestic abuse offences. Both the rape and rape of a young child sentencing guidelines are to be amended in consequence of this change.
The effect of section 108 of the 2025 Act will be to require a court, in considering whether to make an NHO in a domestic abuse case, to have regard to any prior bail conditions imposed on the person preventing contact with the victim. As section 108 applies only to domestic abuse cases it will apply only to those rape offences against a partner or ex-partner. The sentencing guideline on rape of a young child applies where the victim is under the age of 13 and therefore only the rape sentencing guideline will be amended in consequence of the commencement of section 108.
The Council does not anticipate any direct impact on the Scottish criminal justice system from the amended guidelines.
In drafting the existing guidelines, the Council consulted widely, including through a public consultation. The Council does not consider it necessary to conduct another public consultation in this instance as the proposed revisions are restricted to aligning the guidelines with the forthcoming amendments to the law.
The draft revised guidelines and a draft assessment of their impact are available on our website. Following consultation with the Scottish Ministers and Lord Advocate (which the Council must do under legislation), the guidelines will be submitted to the High Court for approval in advance of the amendments to the law taking effect on 1 September 2026.