Ministers had originally expected that the Scottish Sentencing Council (SCC) would begin work before the end of the current parliamentary session, in May 2016. The new SCC will be chaired by Scotland’s second most senior judge, Lord Carloway the Lord Justice Clerk, and will promote consistent and transparent sentencing practices by the Scottish courts as well as producing formal sentencing guidelines.
“We want to ensure that Scotland continues to have the most transparent criminal justice system possible,” said Michael Matheson, the Scottish justice secretary.
“Sentencing can be an extremely complicated and emotive issue and the creation of the new Scottish Sentencing Council will offer greater clarity and openness around why and how sentences are decided while giving the public a better understanding of the process. By outlining the purposes and key principles that underpin judicial decision making, we can increase the public’s confidence in the criminal justice system and continue to ensure fair and appropriate sentences are delivered for the people of Scotland,” he said.
Power to create the new SCC was included in the 2010 Criminal Justice and Licensing Act. This legislation also sets the body’s broad functions: to produce sentencing guidelines; to support relevant research and academic work; to collate and publish information on sentencing decisions; and to publish information about sentencing. It will be for the SCC to decide how best to carry out these functions.
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. The Scottish Government said that this approach had created a “common perception” that sentencing was inconsistent, leading to a lack of public confidence in the criminal justice system.
Other legal jurisdictions across the world, including England and Wales, operate a system of sentencing guidelines that are available to the public and include guidance on factors that courts should take into account when sentencing and, in some cases, an appropriate numerical range of fines or custodial sentences. In England and Wales, courts must follow any relevant sentencing guidelines produced by the Sentencing Council for a particular offence unless it is “contrary to the interests of justice” to do so.
The Scottish Government has said that its system will be “less prescriptive” than those in operation elsewhere in the world. The SSC will prepare sentencing guidelines for court approval, taking into account sentencing levels and types of sentence, and the circumstances in which guidelines may be departed from. The final decision on sentencing in any particular case will remain with the sentencer, but that person will be required to explain reasons for departing from the guidelines if the sentence imposed differs from the range set out in them.
Membership of the SCC will include five other judicial office holders and three legal members along with the Lord Justice Clerk; as well as a police officer, a victims’ representative and a non-legal member. The group will hold its first meeting in November, according to the Scottish Government’s announcement.