About sentencing guidelines
Sentencing guidelines can cover a broad range of things, including:
- the principles and purposes of sentencing
- sentencing levels
- the particular types of sentence that are appropriate for particular types of offence or offender.
We describe the guidelines we prepare as general guidelines and offence guidelines.
General guidelines apply to the sentencing of all offences.
Some general guidelines like ‘Principles and purposes of sentencing’ and ‘The sentencing process’ apply to every sentencing decision in Scotland.
The ‘Principles and purposes of sentencing’ guideline sets out the core principle that sentences in Scotland must be fair and proportionate and the purposes that a sentence may seek to achieve.
‘The sentencing process’ guideline sets out an eight-step process for the sentencing of offenders, explaining how courts arrive at sentencing decisions and what may be taken into account, such as the seriousness of the offence and any aggravating factors (things that may make an offence more serious) or mitigating factors (things that may make an offence less serious).
Other general guidelines only apply to some sentencing decisions.
For example, our ‘Sentencing young people’ guideline only applies where the person being sentenced is a young person – someone who is under the age of 25 at the date they are convicted of an offence.
In contrast, offence guidelines provide guidance on sentencing for specific offences.
The first Scottish offence guideline will be on the statutory offences of causing death by driving. This guideline was approved by the High Court on Tuesday 31 October 2023 and will come into effect on Tuesday 16 January 2024.
Most offence guidelines will cover steps 1 to 4 of the sentencing process. They will set out guidance specific to the offence under consideration: how its seriousness should be assessed, what the sentencing range is (that is, the type and length of appropriate sentences depending on the seriousness of the offence), and what aggravating and mitigating factors may apply.
These offence guidelines will lead a court to the headline sentence. The headline sentence does not take account of such matters as time already spent in custody before sentence, the offender pleading guilty, or any ancillary orders (orders which are imposed by the court in addition to a sentence or, in some instances, as an alternative to the sentence which the court could have imposed).
These matters are covered in steps 5 to 7 of the sentencing process. They do not apply in every case.
Step 8 is the end of the sentencing process. This is where a court imposes the final sentence and sets out the reasons for its decision.
Some offence guidelines may take a different approach where there is a need to cover a wide range of related offences. Instead of giving sentencing ranges leading to the headline sentence, they may set out overarching principles relevant to the sentencing of those offences. This may include guidance of a more general nature on the assessment of seriousness; the aggravating and mitigating factors that may apply; and particular types of sentence that are appropriate for the offences covered by the guideline.
Some offences may be covered by both a principles-based offence guideline and an offence guideline setting out a sentencing range leading to a headline sentence.
All of this means that when sentencing someone in Scotland, a court must have regard to a number of different guidelines:
- the ‘Principles and purposes of sentencing’ and ‘The sentencing process’ guidelines
- any other guidelines that may apply to the offender or circumstances of the case
- any relevant offence guidelines.
What effect do sentencing guidelines have?
Our guidelines must be approved by the High Court of Justiciary before they can take effect. We must review each guideline from time to time after they have taken effect and have developed a staged approach to this.
A court can decide not to follow a guideline but it must explain its reasons for doing so.
Our guidelines are evidence-based: they take into account the findings of research into the causes and impacts of offending behaviour; analysis of sentencing practice and appeal judgments; research into public perceptions and expectations of sentencing; and a wide range of engagement and consultation, including with victims’ organisations and the general public.
Guidelines are not exhaustive. They cannot explain or give guidance about every possible feature of a case. They are intended to provide the most important information about particular types of offence or offender in concise and accessible documents that are easy to refer to for judges, lawyers, and people involved in the case.
Alongside any guidelines that apply, a judge must also have regard to a number of other important matters when deciding a sentence:
- the sentencing powers open to them depending on which court the case is heard in
- any minimum or maximum sentences set out in law for the offence before them
- any guideline judgments issued by the High Court or Sheriff Appeal Court.
And as our sentencing process guideline makes clear, in some cases the court is also required by law to consider:
- whether to reduce the sentence as a result of the offender pleading guilty
- any time the offender has spent in custody for the offence before being sentenced
- the restrictions on passing custodial sentences where the offender is under 21; is over 21 but has not served a custodial sentence before; or where the sentence is likely to be 12 months in custody or less.
Only the sentencing judge, who has heard all the facts and circumstances of a case, is in a position to select an appropriate sentence. This can often be a complex exercise. A judge must consider the evidence and any submissions made to the court, take into account the law, and decide how to apply the relevant sentencing guidelines.
Further information about how guidelines are developed and which guidelines are currently under development can be found here:
Guidelines currently in force can be found here: