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Sentences by the book

14 December 15

The newly established Scottish Sentencing Council is charged with improving understanding, and achieving greater consistency in sentencing. We report on how it hopes to achieve this

by Peter Nicholson

Few aspects of the criminal justice system provoke as much public controversy on occasion as the sentence handed down following a conviction. But is the public really aware of what goes into the process? Is there a significant problem over consistency in sentencing? And can a public body with a specific remit to address these issues really make a difference?

This is the challenge facing the Scottish Sentencing Council, which marked its official launch at a Parliament House reception on 17 November. Set up under part 1 of the Criminal Justice and Licensing (Scotland) Act 2010 and chaired in terms of the Act by the Lord Justice Clerk, its 12 members, judicial, legal and lay, have to act as an independent body yet without compromising the independence of the judiciary they are there to assist.

Justice Secretary Michael Matheson believes the Council has a role. Speaking at the launch, he said that, as a constituency MSP, “one of the issues that can cause confusion and concern for the constituents I meet is how sentencing decisions are arrived at”.

Recognising that the increasing complexity now surrounding sentencing, partly due to (well-intentioned) Scottish Parliament legislation, often made it nearly impossible for ordinary members of the public to follow the process, he added: “It can lead to victims of crime feeling let down by the justice system, which can have an adverse effect on their own personal recovery. Also, individuals and communities want to have confidence that sentencing decisions will help reduce the risk of people offending again in the future."

The Council was born from the work of the Sentencing Commission for Scotland, chaired by the late Lord Macfadyen, which produced four reports between 2003 and 2006 on the scope for improving consistency in sentencing. The final report concluded that whatever the level of inconsistency – and the Commission was satisfied that it existed – the public perception of inconsistency equally required to be addressed. It recommended a new statutory body to be responsible for the creation of draft sentencing guidelines for consideration by the Criminal Appeal Court.

While the Commission favoured an advisory panel, rather than “a body like the [then] Sentencing Guidelines Council in England & Wales”, in which jurisdiction lay as well as legal members are involved in the finalisation and promulgation of guidelines, the “Council” label was adopted in the Act, but with its guidelines subject always to the approval of the High Court.

Preparing guidelines is the Council’s principal function. These can relate not only to particular types of offence or offender, but to sentencing levels generally and, indeed, to the very principles and purposes of sentencing. But it also has a remit to publish information about sentencing matters, provide general advice and guidance, and conduct research. In all of this, it must seek to “(a) promote consistency in sentencing practice, (b) assist the development of policy in relation to sentencing, (c) promote greater awareness and understanding of sentencing policy and practice”.

Representative?

In addition to the chair, the Council is to comprise another High Court judge (Lord Turnbull has been appointed), a sheriff (Norman McFadyen), two stipendiary magistrates or JPs (Allan Findlay and Gillian Thomson), a further judicial member (Sheriff Principal Ian Abercrombie QC), a prosecutor (Catherine Dyer, Crown Agent), an advocate (Stephen O’Rourke), a solicitor (John Scott QC, solicitor advocate), and three lay members including a constable (Assistant Chief Constable Val Thomson), a person with knowledge of victims’ issues (consultant Sue Moody), and one other (Professor Neil Hutton, Strathclyde University).

With the Scottish Government committed to achieving gender balance on the boards of public bodies, concerns were immediately raised by Holyrood’s Justice Committee at the Council’s two thirds male composition. There is a practical difficulty in that responsibility for appointments is shared between ministers and the Lord Justice General, but Ondine Tennant, secretary to the Council, told the Journal that a third of applications or nominations were from women, reflecting the outcome. “The need to make sure that a very wide pool was able to and encouraged to apply was very much in mind,” she commented.

The appointment arrangements should help secure the Council’s independence. What of the courts? The Cabinet Secretary in his address emphasised that the intention was not to interfere with judicial independence, but to provide “a framework to support the judiciary in ensuring that sentencing is consistent and fair”. The Lord Justice Clerk in turn commented: “The interaction between the Council and the courts will be particularly significant.”

Lord Carloway continued: “The courts, while they must have regard to guidelines, will retain their traditional discretion in individual sentencing decisions. However, if a court does depart from a particular guideline, it will have to state its reasons for doing so. This will help ensure that the sentencing process is more transparent than at present, making it clear how guidelines are operating in practice. The hope is that guidelines will act as a useful tool to the judiciary at all levels. They should be designed with this in mind, hence the importance of judicial involvement on the Council.”

The 2006 report considered it “essential for the appeal court to have the opportunity to consider draft guidelines in the context of a judicial hearing, where the merits and terms of proposed guidelines are debated in open court”, complete with representation for the Lord Advocate and, potentially, counsel appearing as amicus curiae: paras 9.30-9.32. The 2010 Act, however, is silent on the method of approval. Tennant thinks that it could be an administrative process more akin to procedural directions – but this will be for the High Court itself to determine.

Scope of the work

When the Council begins its deliberations – the first meetings have been set for 14 December and 7 March – it will already have several matters to decide. At some point, it will be required to submit a business plan to ministers, for which it will have to consider resources and methods of working: it can work through committees, which must be comprised of Council members but which could invite other interested parties to attend.

Then there will be much scoping of its broadly-expressed remit and objectives. What, for example, does “promoting consistency in sentencing” actually mean? To what extent can it assist policy, and how? As for promoting greater awareness and understanding of sentencing policy and practice, where to start? It might naturally be read as relating to the general public, but as Tennant points out, this is not specified, “so it could be both inward facing, those within the justice system, and wider public educational work, perhaps with opportunities to work with other organisations”.

She adds: “I would expect raising awareness and understanding to pervade all aspects of the Council’s work; there are opportunities in all its functions to do this. The Council might also want to undertake particular projects. It is up to the Council what direction it takes.”

The secretariat has been setting wheels in motion for some time. Tennant herself – whose career since her law degree has been with the Justice Department and then the Scottish Civil Justice Council – has been in post for the past year, recruiting colleagues, liaising with Government on the Council’s establishment and carrying out spadework relating to the work programme. “It’s fair to say that it felt like quite a long lead-in time, but there has been quite a raft of work to be done,” she comments. Now assisted by two policy officers, and soon to be joined by a lawyer and a researcher, she expects to remain busy as the Council finds its feet.

The Act, for example, requires the Council to assess the costs and benefits that would result from implementing its guidelines, and their effect on the criminal justice system generally. Partly that will involve collating and analysing data gathered by the Scottish Government and others; partly also policy questions will be involved, such as the proper balance between custodial and community disposals.

“The Council will likely carry out or commission various pieces of research to support that work, to inform the development of guidelines, and possibly in contributing to policy development. I will be looking at a model for carrying out such work. It might be that it is best carried out on a case-by-case basis, sometimes commissioning external researchers or analysts, and sometimes conducting research in-house. It may just depend on the nature of the work. But I imagine research and analysis is going to form quite a large part of the Council’s workload.”

Does that mean a lot of groundwork before the Council comes up with any specific proposals? “That doesn’t stop work beginning on guidelines, because there will be quite a lot of evidence to gather and scoping work to be carried out in preparing any particular guideline. I think the work can be co-ordinated and staggered over time.”

Lessons from others

Sentencing guidelines are longer established in England & Wales, and a Scottish delegation has already visited the Sentencing Council there. Tennant believes the Scots can learn from the implementation process this body has evolved since it replaced the Sentencing Guidelines Council in 2010.

The English guidelines already published – the most recent are on theft – comprise a detailed framework for arriving at a sentence, such that one imagines it being quite a complex exercise just working through all the steps set out. Is the Scottish Council likely to attempt that sort of approach?

“I think there is an opportunity to work with the judiciary and others on what will be most appropriate for Scotland,” Tennant replies. “We not only have a different criminal justice system; the legislation in respect of the two Sentencing Councils is different. In England & Wales, guidelines must cover specific matters, such as seriousness and harm – there is an element of structure set out in their legislation whereas the 2010 Act appears to be a little more permissive in that respect. It will be open to the Council to look at a similar approach or to depart from it.

“There are other jurisdictions we can look at as well, though. We’re also hoping to look at developments in sentencing practice in Ireland and Northern Ireland. In terms of the secretariat’s role, we can report to the Council on findings, but it’s up to the members how best to take any learning forward.

“I would anticipate that what might be borne in mind is what is going to be useful for the court. Practicability will need to come into the thinking behind guidelines. We will also need coherence and consistency across the body of sentencing guidelines, so we will look into that. My hope is that we will be able to take these aspects into account in setting the methodology – the initial roadmap, if you like.”

And whether, for example, guidelines relating to offences and to offenders will be able to follow the same structure will also be up for discussion.

Hearing and speaking

But one thing the new Council is keen to flag up is that it wants to hear from and engage with people outside. “The membership does not – and cannot – encompass all those with an interest in sentencing,” Lord Carloway said at the launch. “It will nevertheless be essential to encourage views from, and to actively listen to, all those with an interest, role and expertise in the sentencing process.”

Both he and Tennant use the phrase “a listening body” in describing the Council. With reference to its role in “demystifying the sentencing process”, Carloway added: “It will have ears, but it will also have a voice. Other jurisdictions have worked with the media to good effect in that regard, assisting with and participating in informative press and broadcast features. We hope that the members of the Council will be able to go out and explain to the media what the Council is doing in future.”

Tennant observes that there is a “huge raft” of stakeholders. “One of the big things the Council will have to think about is how it wants to engage with all those interested parties. That’s something that will be tabled for discussion at the first meetings: a strategy for making sure the different interests, with all the information and expertise that they can provide, are able to be taken into account and understood to help inform the development of guidelines.

“It’s going to be careful and complex work, and ensuring all relevant factors are considered will be very important. So the promotional work that is being carried out just now, for example, is important in making sure people know we are up and running, and to make them aware that the Council may want to seek their input.”

In Lord Carloway’s words, “the creation of the Council marks the start of a new era of sentencing”. Quite how it will play out remains to be seen, but we can expect the subject to enjoy an even higher profile than it has in the past.

“Real opportunity to improve public confidence” – Lord Advocate’s view

The Scottish Sentencing Council is a real opportunity to improve public confidence in the criminal justice system, and its importance to the Crown is demonstrated by the fact that the Crown Agent is its representative, the Lord Advocate, Frank Mulholland QC, told the launch reception.

Prosecutors are often asked what an accused’s sentence might be, he continued, and it is a difficult question – one they cannot avoid answering, but they have to rely on their own experience. “The work of the Council can only assist in improving the transparency about how the sentencer approaches their task,” and being able to put sentencing in the context of guidelines would assist in improving understanding of how a particular sentence was chosen.

Mulholland also referred to the Crown’s power to appeal a sentence as unduly lenient which, he told his audience, was used sparingly – around eight to 10 applications are made each year out of well over 200 cases considered for appeal. A high test has to be passed for success (rightly, he said): the sentence must fall outwith the range that a judge could reasonably have considered appropriate.

He revealed that the Crown already looks at the England & Wales guidelines for cases of causing death by driving, and these can assist in selecting the forum in which to prosecute.

However, the vast majority of crimes and offences are at summary level, and it will be helpful to prosecutors to be able to benchmark a case against guidelines. These offences “have the greatest impact on life”, and the Crown always reviews a case that a court says should have been taken on indictment. 

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