Revised sentencing guidelines on rape submitted to the High Court

The Council has submitted revised rape sentencing guidelines to the High Court to take account of forthcoming legal changes.

In March this year, two guidelines covering rape offences came into force. The Council proposed limited revisions to these guidelines to take account of forthcoming amendments to legislation passed by the Scottish Parliament. Following statutory consultation, and having regard to the comments made, the revised draft guidelines have been finalised and submitted to the High Court for its approval. 

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.

The existing sentencing guidelines for rape, and rape of a young child, explain how NHOs operate for offences covered by the guidelines. 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 amends the terms of section 234AZA of the Criminal Procedure (Scotland) Act 1995. Among other things this requires the court, without an application by the prosecutor (as is currently the situation), to consider making an NHO in cases to which the rape guidelines apply, with a presumption that such an order will be granted. This brings the procedure to be followed for NHOs in rape (and other offences) into broad alignment with that for domestic abuse offences. Both the rape and rape of a young child sentencing guidelines have been amended in consequence of this change. 

The effect of section 108 of the 2025 Act requires 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 offender preventing contact with the victim. As section 108 applies only to domestic abuse cases it applies only to those rape offences where the victim is a partner or ex-partner of the offender.

In drafting the existing guidelines, the Council consulted widely, including through a public consultation. The Council did not consider it necessary to conduct another public consultation in this instance as the proposed revisions are restricted to aligning the guidelines with these amendments to the law. However, the draft revised guidelines, and a draft assessment of their impact were published on its website. Under legislation, the Council must consult with the Scottish Ministers and Lord Advocate, and did so.

Following this consultation process, the Council introduced further revisions to the text of the rape guideline to align more closely with the legislation and assist clarity.

These final revised guidelines have now been submitted to the High Court for its consideration. The High Court can approve, modify or reject them. If the guidelines are approved (either as submitted or with changes), they will be published on the Council’s website.

The Council does not anticipate any direct impact on the Scottish criminal justice system from the amended guidelines.