19 November 2015
Sentencing in criminal cases has long been considered an art form and not a science. Is it any wonder then that those sentences divide public opinion so readily?
The Justice Minister, Michael Matheson MSP recently commented that:
“When a sentence is handed down by our courts, it can often provoke much debate with accusations that a particular sentence is either too lenient or too harsh a punishment based on the crime committed. There can also sometimes be a lot of confusion around the sentencing process itself.”
That could be set to change with the inception of the Scottish Sentencing Council on 17 November 2015.
The purpose of this independent organisation, which is chaired by the Lord Justice Clerk, Lord Carloway, is to promote consistency and transparency in sentencing practice across Scotland with the effect of raising public confidence in, and understanding of our criminal justice system.
The Council’s membership comprises five judicial members, three legal members and three lay members. The selection of members from varying fields of expertise aims to provide a balance of perspective and experience. Lord Carloway commented at the Council’s inauguration on 17 November that he hoped this would encourage a “holistic understanding of the system and the impact of its work”. Appointments include the Crown Agent for Scotland, Catherine Dyer; Assistant Chief Constable of Police Scotland, Val Thomson; and prominent defence Solicitor Advocate, John Scott QC.
The Council will be responsible for producing sentencing guidelines for the judiciary in relation to subject matter of its own choosing or at the request of the High Court and Sheriff Appeal Court (obligatory); or Scottish Ministers (discretionary). These guidelines may include: direction on principles and purposes of sentencing; sentencing levels; specific types of sentence for specific offences and offenders; and circumstances where guidelines may be departed from. Proposed guidelines will require approval by the High Court, in whole or in part and with such modifications as are deemed appropriate, before taking effect. Thereafter, when sentencing an offender, a court must have regard to any guidelines which apply to the circumstances of the case; providing reasons for any departure therefrom.
The Council will also publish guideline judgments and sentences imposed by courts; conduct research into sentencing practice and help develop sentencing policy generally.
The application of sentencing guidance is hardly a new concept in Scotland. Courts have had regard to guidance from the Sentencing Guidance Council in England and Wales for some time where offences derive from UK Acts. This is particularly so in relation to health and safety offences and road traffic offences resulting in death. The Scottish Sentencing Council will now be in a position to address disparities and displeasure with sentencing practices unique to Scotland.
Ultimately guidelines are just that – guidelines. Every case turns on its own particular facts and circumstances and the court will be best placed to select the most appropriate disposal having regard to the myriad factors which influence sentence. It is hoped that the new Scottish Sentencing Council will provide a steer in the right direction.
If you require further information about this update, please do not hesitate to contact:
Vikki Watt, Partner & Solicitor Advocate: vwa@bto.co.uk / 0141 221 8012