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Sentencing Guidelines and a Scottish Sentencing Council: Consultation and Proposals

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03. PROPOSED STRUCTURE

Membership

3.1 The composition of the membership of the Sentencing Council will be important - it will need to command legitimacy in the eyes of sentencers, the wider criminal justice community, and the public in general. Sentencers and other criminal justice professionals will need to have confidence that the guidelines with which they are required to comply have been drawn up by those with the appropriate expertise, experience and skills. Equally, the public would expect that the views of all those with an interest in the process and outcome of sentencing practice should be represented.

3.2 We believe that a blend of judicial and non-judicial membership would be the best approach, with a senior judge (either the Lord President, Lord Justice Clerk or a senior judicial colleague to be named by them) as chairperson. The make up of the majority of the membership would be stipulated in statute. We consider that the following mix would strike the most appropriate balance:

  • 1 High Court Judge
  • 1 Sheriff
  • 1 Justice of the Peace or Stipendiary Magistrate
  • 1 nominee from the Crown Office and Procurator Fiscal Service ( COPFS)
  • 1 nominee from the Association of Chief Police Officers in Scotland ( ACPOS)
  • 1 nominee from the Faculty of Advocates
  • 1 nominee from the Law Society of Scotland
  • 1 representative of a victims' organisation or specialist in victims issues

3.3 In addition, and to ensure that the views and concerns of the general public are properly taken into account when guidelines are being developed, the membership should include two independent, non-judicial members. These posts would be filled following a fair and open appointments process and the eventual members could be drawn from a range of backgrounds including offender management agencies, victims groups and other non-governmental organisations, academia and the wider community. This process would be regulated by the Scottish Commissioner for Public Appointments

3.4 We believe that such a membership would provide the opportunity for dialogue between the different parts of the criminal justice community and wider Scottish society, while reflecting the essentially judicial function of sentencing.

Question 9
Do you agree that the chair of the Scottish Sentencing Council should be a senior member of the judiciary? If not, who do you think would be a more suitable chairperson?

Question 10
Do you consider the proposed membership of the Council to be appropriate? If not, what alternative membership do you think would be more suitable?

3.5 It is not proposed that there should be a representative of the Scottish Government on the Council. However, it may be helpful for a Scottish Government official to attend meetings of the Council as an observer only. This official would play no part in developing or finalising sentencing guidelines, but would facilitate the flow of information between policy makers and the Council and so enhance the work of both as a result. This could be a valuable tool in helping the Government and the Council take account of each other's work as it develops, particularly around assisting and informing policy development and helping in the management of the prison population and wider penal policy.

Question 11
Do you agree that there should be a Scottish Government observer at meetings of the Council? If not, it would be helpful if you could provide your reason(s).

3.6 We would propose that judicial members should be appointed to the Council by the Lord President after consultation with the Scottish Ministers. Non-judicial members would be appointed by the Scottish Ministers after consultation with the Lord President. Appointments would be for a fixed term of five years, with no possibility of renewal. We consider that this arrangement would help to demonstrate the complete integrity of the Council and eliminate any risk of accusations that the prospect of re-appointment could compromise the independence and impartiality of the body.

Question 12
Do you agree with the proposed appointments process? If not, how do you think the process could be modified to make it more effective?

Organisation

3.7 We consider that the Scottish Sentencing Council should be constituted as an Executive Non Departmental Public Body ( NDPB). This would place the body on the necessary statutory footing while underlining its independence from Government.

3.8 We recognise that, in order to carry out its functions effectively, the Scottish Sentencing Council will require a team of dedicated and professional support staff drawn from a range of backgrounds, including first class legal specialists, researchers, analysts and administrators. Through the Judiciary and Courts (Scotland) Bill, currently making its way through the Scottish Parliament, we aim to create a reconstituted and judicially led Scottish Court Service ( SCS). Subject to the successful passage of the Bill, we consider that the office which would support the Council could be managed and supported within the SCS, which would be well placed to provide the body with necessary back office functions such as IT and human resources services.

3.9 From a practical point of view, such an arrangement would help to keep administrative costs to a minimum while ensuring close ties between the Council and the hub of the court/judicial system. It would also underline the central importance of the judiciary to improving consistency and transparency in sentencing. The appropriate funding would of course be made available to ensure that the Council was properly resourced without having any negative impact on the other valuable services already delivered by the SCS.

Question 13
Do you agree with our proposals for how the Scottish Sentencing Council should be resourced and supported? If not, what alternative arrangements to you think would be more appropriate and/or effective?