Sentencing Council could bring major change: Carloway
A significant change in the substantive law would result if the new Sentencing Council for Scotland were to propose priorities in sentencing goals, the Lord Justice Clerk said in a lecture last night.
Delivering the Howard League Scotland Lecture at Edinburgh University, Lord Carloway predicted that the result could be to render obsolete existing sentencing jurisprudence, "such as it is". "The courts would require to rethink the sentencing exercise on the basis of the newly created hierarchy of purposes", he observed.
Legislation to create such a council was contained in the Criminal Justice and Licensing (Scotland) Act 2010. It is anticipated that it may be brought into force next year.
In his lecture, entitled "The Purpose of Sentencing – From Beccaria to the OLR and Beyond", the Lord Justice Clerk traced the development of the philosophy of punishment from the first influential Scottish criminal law writer, Sir George Mackenzie in 1678, to the present day. The "Beccaria" of his title was an Italian whose work, published 250 years ago this year, was pioneering in arguing against the use of physical punishment and torture, in favour of punishments that would "make strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal".
Dealing with the modern era, Lord Carloway considered the development of sentencing principles and guidelines in England and the rather complex approach developed by the Sentencing Council there, where various purposes of sentencing are also prescribed by statute. Referring to the schemes developed for each type of offence, he noted: "All of them are descriptions of a mental exercise which a judge ought to
go through in arriving at a final decision. The description is of a somewhat ponderous process which, in reality, having heard the Crown and the defence, an experienced judge will go through almost in a split second."
He added: "There will no doubt be some pressure, when the new Sentencing Council for Scotland is established, for formulating similar guidelines in this jurisdiction... It may augment transparency, but the downside, as the Justice Committee has commented, is that it may have unforeseen consequences including the wholesale discard of current precedent."
Observing that the various purposes of sentencing, such as punishment, deterrence and reform and rehabilitation, pull in different directions, Lord Carloway commented that to set out the key factors, even if supposedly for the public benefit, "does rather tend to describe a somewhat stratified process of reasoning in which the sentencer scientifically analyses each specific component before reaching a rational decision
in which all the factors have been carefully placed and appropriately balanced. This is the hypothesis upon which the English guidelines proceed. Although it may be what is actually done in the mental process
prior to sentence, especially in the less time-pressured atmosphere of the High Court, the act of decision making occurs in a moment and, in the sheriff courts especially, with a speed and frequency which hardly admits such a systematic logical progression of justification".
The Scottish legislation in its final form dropped such a statement, but in a sense delegated the formulation of such principles to the council, subject to the approval of the High Court. If they were stated in such a form, Lord Carloway maintained, "listing them will not be of much practical assistance to the Scottish judge.
They will provide only very limited help to either the offender or the victim in predicting the likely sentence".
He concluded: "Perhaps the best thing that could happen is that a new Beccaria will emerge, who could guide us all forward towards the promised land. That country may be one in which, whilst the offender who is assessed as a continuing danger to the public should be subject to some relatively restrictive regime of incarceration and/or intense supervision in the community, all others should be paying back to, and learning in, the community and not removed from it and put behind the walls and barbed wire that future generations may regard, as we now do the practices prevalent in Beccaria’s day, as barbaric."