Myth buster

When people are sentenced to life imprisonment, the judge must, by law, set the punishment part - the minimum time the person will spend in prison before they can be considered for release at all. After that minimum time, they will remain in prison unless the Parole Board for Scotland decides that they are safe to be released into the community under lifelong conditions. When setting the punishment part of a life sentence, judges can set a period which is likely to 'exceed the remainder of the prisoner's natural life'. This can result in a whole life sentence. Information on the factors which are taken into account by the Parole Board for Scotland when considering release on licence is available on its webpage.

People sentenced to a community payback order (CPO) do not ‘walk free from court’. They still have a sentence, but one which is served in the community instead of in prison. CPOs can be challenging and can last for years. CPOs can include both punishment, such as unpaid work, and rehabilitation, such as programmes to help stop offending behaviour. There are nine different requirements that can be added to an order, and the judge will decide which ones to include. These can be:

• up to 300 hours (the equivalent of 6 hours per day for 50 days) of unpaid work such as cleaning, restoring fallen or vandalised cemetery headstones, or clearing snow
• alcohol or drug treatment to deal with addiction
• years of regular meetings with a criminal justice social worker to challenge and help address and change offending behaviour
• compensation payment to a victim.

CPOs can include a compensation requirement which means that offenders must pay money to victims, via the court, as a result of the harm they have caused. A CPO can further be combined with a restriction of liberty order, where the offender is fitted with an electronic tag and must remain within a particular address during specified hours, for example staying home from 7 pm to 7 am. Changing offending behaviour can help prevent someone else from becoming a victim in the future. If people breach the order, they can be brought back to court and may be sent to prison.

See our CPO webpage for more information on other requirements.

When judges decide the most appropriate sentence, they take all the relevant factors into account. This includes the harm caused to any victims. For some offences, victims can write a statement for the court explaining how they have been affected by a crime whether physically, emotionally or financially. The judge will consider this statement before passing sentence. However, even without a victim statement, the harm caused by the offender will always be taken into account.

A custodial sentence means more than just time in prison. In many cases, people will serve part of their sentence in the community. Under the law (Prisoners and Criminal Proceedings (Scotland) Act 1993) custodial sentences can be divided into 3 types: short term (less than 4 years); long term (4 years or more); and life.

A person given a short term sentence will normally be released from prison after serving half of their sentence. However, if they commit an offence during the period when they would have been in prison if not for their release, the court can order their return to prison.

A person given a long term sentence can serve all but the final 6 months of the sentence in prison, unless the Parole Board for Scotland recommends that they should be released earlier into the community. The Parole Board will only start to consider whether or not to release the person into the community as they approach the halfway point of their sentence - the earliest point at which they can normally be released.

When people serving a long term sentence (and people sentenced for sexual offences to a period of six months or more) are released into the community, they will be ‘on licence’ until their sentence finishes. Being on licence means following certain rules, for example, staying away from particular places and people, wearing an electronic tag, staying at home at night, and meeting with a criminal justice social worker. They can be recalled to prison if they commit an offence or otherwise breach the terms of this licence. For more information on what factors are taken into account by the Parole Board for Scotland when considering release on licence see their FAQ webpage.

Some sentences can be imposed as extended sentences. These are imposed for certain serious sexual or violent offences. An extended sentence combines a period in prison with a further set time of supervision in the community (the extension part). For extended sentences, the person serves the full prison part of the sentence - unless the Parole Board for Scotland recommends early release. When released they are on licence until the end of the extension part of the sentence and can be recalled to prison if they breach the terms of their licence.

If a person is sentenced to life imprisonment or an order for lifelong restriction (OLR), the judge must, by law, set a punishment part of the sentence. This is the minimum time the person must spend in prison before they can be considered for release into the community by the Parole Board for Scotland. Depending on the circumstances of the case, the punishment part can be lengthy. To date, the longest punishment part given in Scotland is 37 years which was imposed on a 69 year old offender. If a person sentenced to life imprisonment or to an OLR is released, they will be on licence for the rest of their life and can be recalled to prison if they breach the terms of their licence.

For more information, see our prison sentences prison sentences page.

When deciding the most appropriate sentence, judges take all the relevant factors into account. This includes both harm caused to a victim and the offender’s circumstances. The judge will consider the effect of the harm on a victim as well as the health and circumstances of the offender. The judge will consider both the appropriate punishment for the seriousness of the offence and the appropriate sentence for addressing the person’s offending. For more information see our sentencing page.

If offenders feel their sentence is too severe, they can appeal against it. The judges who hear an appeal can reduce the sentence, make no change, or even increase it.

The prosecutor (who puts the case against the offender in court) can also appeal against a sentence if they think it is too low (below what would be the normal range). Read more about how appeals work.

People outside the justice system often base their view of sentencing on media reports, but news items cannot always cover the many factors of a court case. This can sometimes make it difficult for people to understand why a particular sentence is given.

Almost all criminal cases are held in open court and anyone over the age of 14 can attend to hear the full facts of the case. In some instances, judges write sentencing statements which are published on the Judicial Office for Scotland website. These outline the judge’s reasons for deciding the sentence.

Fines enforcement officers can take measures against people, who can afford to pay fines but do not. They can take payment directly from wages, bank accounts or benefits, and seize cars. In some circumstances, the court can order that a fine defaulter be arrested by the police. For more information, see the Scottish Courts and Tribunals Service quarterly fines reports.

The Council provides sentencing guidelines to assist the courts. The guidelines set down the principles and purposes of sentencing, the steps judges should go through when deciding a sentence, including the factors they should consider, and the particular circumstances to be taken into account when sentencing a young person. Future guidelines will cover specific offences. Where appropriate, judges can decide not to follow a guideline, but must give their reasons. The guidelines are just that – guidelines – they do not “tie judges hands”.

The Sentencing Young People guideline states that the full range of sentencing options including imprisonment remains open to the court when sentencing a young person under 25.

It also says that a custodial sentence should only be imposed on a young person when the court is satisfied that no other sentence is appropriate. If custody is imposed, the length of time in prison or detention should be shorter for a young person.

The guideline is based on research from around the world into the causes of offending by young people and the approaches that are effective in reducing reoffending. It says that rehabilitation is a primary consideration in sentencing young people in recognition of their greater potential to change.

The law already requires that where:  

• the person being sentenced is under 21, or over 21 and has not served a custodial sentence before
• the sentence is likely to be one of 12 months in custody or less,

the court shall not pass a sentence of imprisonment unless it considers no other method of dealing with the person is appropriate. 

The Council is an advisory body that is independent of government or political parties. It provides sentencing guidelines for the courts based upon evidence, engagement and consultation, including public consultation. See our web page for consultations you can take part in. Before they can take effect, the Council’s guidelines must be approved by Scotland’s supreme criminal court, the High Court of Justiciary, which is also independent of government. 

Gavels can often be seen in television court dramas, but they are not used by judges in Scottish courts.