High Court approves Sentencing Council's first guideline

Scotland’s first sentencing guideline, developed by the Scottish Sentencing Council, was today approved by the High Court of Justiciary.

Following a short hearing, the Lord Justice General Lord Carloway, Lord Brodie and Lord Drummond Young approved the guideline, which sets out the general principles and purposes of sentencing for all offences (click here to view). It will come into force on Monday 26 November.

Set up three years ago, the Sentencing Council's functions include preparing guidelines to assist consistency in sentencing, and increasing public understanding of the sentencing process. Guidelines developed by the Council must be approved by the High Court of Justiciary before they can be applied. The High Court can approve or reject a guideline, or approve it with modifications.

Sentencing judges must then have regard to any relevant guidelines in relation to the case. If they decide not to follow the guidelines, they must state their reasons.

The new guideline sets out a core principle of "fairness and proportionality", which the Council considers underlies all sentencing decisions, and purposes which sentencing may seek to achieve, such as rehabilitation, protection of the public, and punishment. Reference to considering the impact of an offence on others affected by the case, in addition to the victim, was also included following a public consultation.

Lady Dorrian, Lord Justice Clerk and chair of the Sentencing Council, commented: "This is an historic moment. The approval of Scotland’s first sentencing guideline marks a new approach to supporting sentencing consistency and decision making. The fundamental principles and purposes of sentencing have never before been expressly defined in Scotland, and we believe that this first guideline will have significant benefits both to the public and the courts."

She added: "In developing the guideline we have drawn on expertise and research from across Scotland and other jurisdictions, and I would like to thank all those who have provided views and helped to shape our approach, particularly during the public consultation exercise. We were clear from the outset that our approach to developing guidelines will always be evidence based. This does take more time but is essential in getting guidelines right."

Also today, the Council has published its 2018-21 business plan. Developing guidelines on sexual offences and sentence discounting will now be included in its planned work programme for the next three years. This is in addition to continuing work on guidelines relating to the sentencing process, sentencing young people, causing death by driving, and environmental and wildlife offences.

Lady Dorrian observed: "Sexual offending has increasingly become an area of public concern in recent years, with increased reporting, prevention and enforcement action. Sexual offences account for a high proportion of sentencing, particularly in the High Court, often involving difficult decisions in complex circumstances. This is an area of great public importance in which we believe a guideline or guidelines would bring significant benefits to the judiciary, those who have been involved in such cases, and to the wider public.

"Sentence discounting is also an area in which we consider guidance would be helpful. Support and advocacy organisations tell us that victims and their families sometimes find it difficult to understand why a discounted sentence has been given in certain circumstances, and there is anecdotal evidence from practitioners that a guideline would also provide greater predictability for accused persons."

As a high proportion of offenders have experienced difficulties with mental health or mental illness, the Sentencing Council is also interested in exploring the subject of sentencing people with mental welfare issues. The Council plans to hold discussions with interested stakeholders to learn more about the issues arising with a view to considering what, if any, activity the Council might undertake in this area.

The Council will also carry out preparatory and scoping work in relation to the new domestic abuse offence, once it is brought into force.