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Faculty welcomes draft "sentencing process" guideline

6 September 2019

The Scottish Sentencing Council's draft guideline on the sentencing process is "concise and easy to understand", and will be a benefit to the public, the Faculty of Advocates believes.

The guideline, issued in draft for public comment, aims to set out the various steps taken by judges in making a sentencing decision, and factors which may be taken into account.

In its response, Faculty said it agreed that the guideline would lead to an increase in public understanding of how sentencing decisions were made.

"In our opinion, the major benefit of the guideline overall is that it sets out, in a concise and easy to understand document, the various steps through which a court must go when sentencing. It demystifies and places on a formal setting the ‘instinctive synthesis’ of sentencing", Faculty stated.

"The public will benefit from having an easily understood document which explains and, to a point, justifies the sentencing process. The guideline also formalises what courts require to do on sentencing, which will assist as an aide memoire to the courts on sentencing, perhaps helping to homogenise sentencing decisions, in a positive sense."

Faculty makes a number of suggestions, such as including specific mention of an offender’s general personal circumstances and background in a list of mitigating factors, and setting out in more detail the justification for sentencing discount.

It also has some reservations about the way "culpability" and "harm" are dealt with in guidance on assessing the seriousness of an offence.

"In terms of culpability, the guidelines as presently drafted do not indicate what should be done in circumstances where the mental attitude of the offender is not known or cannot be discerned… It would be helpful if the guideline could be expanded to explain that, presumably as intended, it covers physical harm, but also emotional harm, financial harm, and damage to property, perhaps among other forms of harm", it comments.

Click here to view the full response.


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