Uncertain how Scottish courts will adapt to new English health and safety sentencing guidelines, says expert

Katherine Brydon of Pinsent Masons, the law firm behind Out-Law.com, was commenting after Lord Carloway used a recent sentencing appeal to remind Scottish judges that English guidelines should not be applied in a "rigid or mechanistic" way, even where the offence in question was governed by UK statute.

In this case, Lord Carloway declined to follow English sentencing guidelines for a drug offence, despite acknowledging that their use would have resulted in a much longer custodial sentence than was the general practice in Scotland. Differences in "sentencing purposes, practices and regimes" between the two jurisdictions meant that the guidelines could only provide a "useful cross check for sentences in Scotland".

Alexander Sutherland, the appellant in the case, had been sentenced to 13.5 years in prison, down from a starting point of 18 years because he had pled guilty at an early stage. He had appealed the sentence on the grounds that the 18 year starting point was too high, because the relevant sentencing guidelines in England and Wales suggested a range of between 12 and 16 years for the most serious offences.

However, the judge found that had Sutherland been tried in England, his offence would probably have fallen under another part of the guideline which would have set a starting point of 20 years or more in prison.

The Sentencing Council produces guidelines for various offences, which judges and magistrates in England and Wales must refer to when deciding on an appropriate sentence. The guidelines provide guidance on the factors the court should take into account that may affect the sentence given, and set out different levels of sentence based on the harm caused to the victim and the blameworthiness of the offender.

Currently, judges in the Scottish criminal courts sentence on a case-by-case basis, although certain sentencing options and sentencing for particular offences is prescribed by parliament. A new Scottish Sentencing Council (SSC), chaired by Lord Carloway, has been set up to promote consistent and transparent sentencing practices by the Scottish courts including through the use of sentencing guidelines. It will meet for the first time on 14 December.

The Definitive Guideline on Sentencing for Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences will come into force on 1 February 2016, and will have significant implications for both corporate and individual offenders in England and Wales. Large companies can expect fines of around £10 million for the most serious health and safety breaches under the new guideline.

"The Definitive Guideline does not apply in Scotland," said Katherine Brydon. "Our expectation is that it will be brought to the attention of judges in Scotland – but what we don't know is how much weight the Scottish courts will place on it."

"We already see the Scottish courts referring to other English guidelines when they are dealing with UK-wide offences, for example offences involving drugs. However, it is too early at this stage to say with any certainty how closely the Scottish courts will follow the health and safety sentencing guidelines in any particular case," she said.