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Sentencing Guidelines and a Scottish Sentencing Council: Consultation and Proposals



2.1 Having set out our reasons for establishing a Sentencing Council, we will now consider what remit and functions it should have before moving on in the next chapter to consider what might be the best structure and shape for the new body.

Remit of the Scottish Sentencing Council

2.2 Against the background of the recommendations made by the Sentencing Commission, and the role assigned to sentencing councils in other jurisdictions, we propose that the Scottish Sentencing Council should be given a statutory remit to do the following:

  • Promote consistency in sentencing practice;
  • Ensure that sentencing practice and policy is transparent and understandable;
  • Enable development of sentencing policy to be based on a broad range of experience and expertise;
  • Inform the Scottish Ministers and the Scottish Parliament on sentencing practice and related areas for reform; and
  • Inform and educate the public about sentencing policies and decision making, with a view to promoting greater understanding and enhancing public confidence in the criminal justice system.

Question 1
Do you think that this proposed remit is appropriate? If not, what alternative would you suggest?

Functions of the Scottish Sentencing Council

2.3 In order to fulfil the remit outlined above, we propose that the Council should also be given a series of statutory functions, mandating it to:

  • Produce sentencing guidelines on:
    • Sentencing levels for particular offences;
    • Particular types of sentences, disposals, and other orders available at the time of sentencing;
    • Grounds for departure from sentencing guidelines; and
    • Other matters relating to sentencing
  • Support research and academic work relevant to the Council's remit;
  • Collate information on sentencing decisions, and on compliance with and departure from sentencing guidelines, and publish this information; and
  • Provide information to the public about sentencing.

Question 2
Do you think that these proposed functions are appropriate? If not, what alternatives would you suggest?


2.4 It is our view that the Sentencing Council should be allowed to establish its own method of working including the detailed procedures for producing sentencing guidelines and carrying out its other functions. This will allow the body to approach its work in a flexible way. However, we do think that the Sentencing Council should operate within a basic framework - our proposals for this are set out in the paragraphs which follow.

Setting the Agenda

2.5 We propose that the Sentencing Council should be required to prepare and submit to the Scottish Ministers an annual business plan covering all aspects of its remit. This plan would be laid before the Scottish Parliament. The Council would be required to consult certain named office holders who have a close interest in its work when producing the business plan. These would be the Scottish Ministers and the Lord Advocate and, possibly, the Secretary of State and the Advocate General for Scotland. We think that the Council should be able to issue guidelines on offences in reserved areas of law for which the UK Government has responsibility, such as road traffic or drugs. We are currently considering how this might best be achieved, including the role of the UK Government in being consulted by the Council on draft guidelines that relate to such areas.

2.6 We also consider that these same office holders should be able to invite the Sentencing Council to produce guidelines on particular issues or for specific offences. The Council would not be obliged to take on such references. If it did decide to act on a reference, this would need to be reflected in its annual report (see below). If, during the course of the year, an issue arose for which it was considered guidelines were urgently needed, it is our view that the Council should be able to address this without the need for a referral. Any such decision would also have to be highlighted in the Council's annual report.

2.7 The Council would be required to prepare and submit to the Scottish Ministers an annual report covering all aspects of its remit and activities. These documents would be laid before the Scottish Parliament. We propose that, where the Council has declined to deal with a reference from one of the office-holders referred to in paragraph 2.5, it would be required to provide the reason(s) for so doing in its annual report.

Drafting and Producing Sentencing Guidelines

2.8 We consider that the Sentencing Council should produce draft guidelines on which it would require to consult the same specific named office holders as it does when preparing its business plan. This would not preclude wider consultation with other interested parties. Indeed we would expect the Council to seek views from all individuals and groups with an interest in its work.

2.9 We firmly believe that there should also be an opportunity for the public to comment on draft guidelines before they are finalised - providing ordinary people with a greater opportunity than ever before to influence sentencing policy in Scotland. We propose therefore that the Sentencing Council should be required to publish draft guidelines and allow time for these to be commented upon before they are finalised. The body would also be required to produce an assessment of the costs and benefits of any draft guidelines it proposes, and of the likely impact of those guidelines on the prison population, community disposal capacity, and the wider criminal justice system. These assessments would be published at the same time as the draft guidelines, to help inform the public debate.

2.10 Following the consultation period, and once the Council has had an opportunity to consider in detail any representations made by individuals or organisations, the guidelines would be finalised and published. Finally, we also think that the Sentencing Council should be under a duty to review each guideline periodically to determine if it requires to be updated.

Question 3
Do you think our proposals in relation to the production of sentencing guidelines are adequate?

Question 4
Do you think that we are proposing the correct level of consultation on draft sentencing guidelines?

Relationship with the Courts

2.11 Once guidelines are finalised and published, we propose that sentencers in all Courts, including the Appeal Court, should be under a statutory obligation to adhere to those guidelines in disposing of any relevant case which comes before them. Under this system, sentencers would be able to depart from guidelines if the circumstances of a case required it, but would be required to formally state and record detailed reasons for doing so at the point of sentence.

2.12 We believe that the Appeal Court should continue to be able to exercise its powers, under sections 118(7) and 189(7) of the Criminal Procedure (Scotland) Act 1995, to issue guideline judgements. However, as with any other court, the Appeal Court would be required to apply any sentencing guideline promulgated by the Sentencing Council. If the Appeal Court were ever to be faced with applying a Sentencing Council guideline with which it did not agree, we propose that it should be able to request that the Council reviews the guideline. The Council would be placed under a statutory obligation to comply with any such request.

2.13 Finally we also propose that a duty should be placed on the Lord Advocate, when exercising his or her power to appeal against a sentence on the grounds of undue leniency, to have regard to sentencing guidelines pertaining to the offence in question.

Question 5
Do you consider that our proposals for the relationship between the Sentencing Council and the Courts is appropriate?

Supporting Research and Academic Work

2.14 We propose that the Sentencing Council should have the power to independently commission and carry out research. This function would be relevant to every aspect of the Council's overall remit. However, it would have special significance in enabling the Council to help develop national sentencing policy based on the available evidence, in addition to broadening public understanding of sentencing patterns and practices. Accordingly, we would be keen to confer on the Council a power to carry out, commission or co-ordinate research and publish the results of such research. This would include the power to make grants to academics or research organisations for this purpose.

Question 6
Do you agree that the Scottish Sentencing Council should have the power to carry out, commission and co-ordinate research?

Dissemination of Information

2.15 Gathering together and publishing information on sentencing practice and decision making will play a major part in improving transparency in the sentencing process and, in our view, improving public confidence in the workings of the Scottish criminal justice system.

2.16 It is for this reason that we have proposed that the Sentencing Council's statutory functions should include collating information on sentencing practice and decision making and on compliance with, and departure from, sentencing guidelines. This information would be disseminated to the judiciary to help increase practitioners' knowledge of patterns and variations in sentencing and assist efforts to improve consistency. We also believe that the Council can and should play a crucial role in providing clear information to the public about sentencing practice and procedures, to make the process more transparent and improve public understanding.

2.17 As with the sentencing guidelines themselves, the detail of how these functions are discharged should be for the Council to decide. However, at a minimum, we consider that the Council should be obliged to provide information on how these functions have been carried out in its annual report. We would expect the Council's activities in this area to extend far beyond this basic requirement, both in the volume and form of communication used.

2.18 The sentencing process is often considered to be arcane or inaccessible to those outwith the criminal justice system. We believe that this situation can be rectified. Ordinary members of the public - particularly victims of crime and their families - should be presented with a process that is clear and transparent. While it is unlikely that victims will always agree with the sentence handed down in individual cases, they should be able to understand how and why the decision to impose that sentence was made.

2.19 The Sentencing Council can play an important role in educating people about the sentencing process, and the many factors which must be considered by judges when making sentencing decisions. It is our belief that a clearer, more accessible process will help to improve public confidence that justice is being done.

Question 7
a) Do you agree that the Scottish Sentencing Council's statutory functions should include providing information to the public about the sentencing process?
b) If yes, how do you think that process could be made clearer and more understandable to ordinary members of the public?

Question 8
What measures might be taken by the Scottish Sentencing Council to make the sentencing process more transparent?