Back to top
Article

The guideline goal

17 September 18

Criminal law briefing: ahead of his stepping down, the solicitor member of the Scottish Sentencing Council gives a personal perspective on the first three years of its work

by John Scott QC

As I will shortly be stepping down as the solicitor member of the Scottish Sentencing Council, I thought that it might be useful for colleagues to hear a little about the work of the Council in the last three years from a solicitor’s perspective.

As the Council was a new body, I was not entirely sure what to expect. After a while, the similarities in committees become more striking than their differences, not least on many occasions in their membership. The Scottish Sentencing Council stands out nonetheless as being very different from normal committees, while sharing some of the characteristics with which many will be familiar. In particular, the mix of judiciary, practitioners and lay members makes for stimulating discussion. There is also an impressive secretariat, which engages well with Council members and contributes to the shaping and implementation of our ideas.

In the first incarnation of the Council, it would have been easy in some ways simply to sit down and start producing guidelines. Indeed, some may have expected us to do so. Such an approach would have carried many risks, especially the difficulty in changing course if we set off in a wrong direction. Instead, most obvious from an early stage in our work was the unanimous ambition of being evidence-led and seeking wide consultation on our work.

Evidence-led

Being evidence-led is the stated ambition of many organisations. Our commitment to it can be seen in the fact that our first guideline will only just have completed its passage to the High Court towards the very end of the Council’s first three years of operation. During that time, we have consulted widely with interested parties and organisations, the judiciary and the public. Our approach to some matters has changed as a result of consultation. While the Council will be unable to satisfy the demands of all, especially when it comes to offence-specific guidelines, we hope that through the Council’s work there will be a greater understanding of what happens in the sentencing process and sentencing in individual cases. That is another important part of our statutory responsibilities.

The time commitment for being a Council member amounts to approximately 12 days a year, between full Council meetings and meetings of the various committees of the Council. In addition, there is a considerable amount of reading. (One tip – trying to operate without paper is a good idea to save on excessive “humphing”.) In general, at least a full day is required to be able to read all the papers for a full Council meeting. Given the constraints of time, and the strategic and operational decisions that come to Council, there is really no other way for the Council to function.

I have enjoyed my time on Council. Apart from the full Council, I have been involved in the Communications Committee and the committee looking at the sentencing of young people. The work has been fascinating and I look forward to seeing how it translates into practice. I can recommend the role to anyone interested in our courts and the development of the policy and practice of sentencing in Scotland.

John Scott QC, solicitor advocate

“Principles and Purposes” sent for approval

A final version of its Principles and Purposes of Sentencing guideline is to be submitted by the Scottish Sentencing Council to the High Court of Justiciary for approval.

Last year the Council consulted on its draft guideline, which attempted to provide for the first time a comprehensive definition for the principles underlying sentencing decisions and the purposes they seek to achieve.

This set out an overarching principle of “fairness and proportionality”, and a series of supporting principles which contribute to this, such as:

  • similar offences should be treated in a similar manner;
  • sentences should be no more severe than necessary;
  • reasons for sentencing decisions should be stated clearly and openly;
  • people should be treated equally, without discrimination.

It also outlined the purposes sentencing may seek to achieve, such as:

  • punishment;
  • reduction of crime (including through rehabilitation);
  • reflecting society’s disapproval; giving offenders an opportunity to make amends.

Having considered the responses to the consultation, the Council does not intend to add to its explanation of what “fairness and proportionality” involve, as they are “intentionally broad concepts”, but accepts that it may be useful to consider the comments made when developing any case studies which are published alongside the guideline.

As for the supporting principles, the Council wants to avoid creating the impression of a “hierarchy of principles”, and “agrees that a reference to considering the impact on others affected by the offence (including the victim’s family, the offender’s family, or others) would be useful”.

On the purposes of sentencing, the Council again rejects any suggestions that a hierarchy should be created, as “the most relevant purpose or purposes of sentencing in each case will depend on its own particular facts”.

It has decided to include “protection of the public” and “rehabilitation of offenders” as distinct purposes of sentencing instead of the single “reduction of crime” in the draft. Some simplification and clarification of the other purposes has been agreed.

In response to other matters raised, the Council will explain how parts of the guideline may operate in practice though the development of a case study or studies.

Have your say