Council publishes report on sentencing assault offences
6 October 2022
The Council has today published a new literature review on the sentencing of assault offences. The review was carried out by a group of expert academics from the University of Liverpool and the University of Surrey.
While Scottish common law recognises assault as a single crime, it includes a wide range of actions and behaviour from verbal threats of harm to severe assault with permanent disfigurement and threat to life. As such, sentencing can range from admonition (a warning as a recorded conviction) through to life imprisonment.
The report examines and compares assault guidelines in England and Wales, the USA, Northern Ireland, the Republic of Ireland, and Australia. It also refers to the Council’s Sentencing Process guideline as informing the sentencing of assault offences in Scotland, along with case law, appeal judgements and the sentencer’s consideration of the individual factors of the case.
It finds that approaches to the sentencing of assault, and the severity of punishment, vary across jurisdictions. In most cases, however, the key features considered when sentencing these offences were the harm inflicted or intended, whether the victim was a public official such as a firefighter or paramedic, weapon use, whether the victim was targeted because of one or more protected characteristics, and a relevant offending history.
The review highlights that the Council’s Sentencing Process guideline, and the sentencing guidelines for assault offences in England and Wales, list an offence committed under the influence of alcohol consumed voluntarily as an aggravating factor (something that makes the charge more serious), but that this approach has received opposition in Australia.
Meanwhile, the consideration of mitigating factors (things that make an offence less serious) were fewer across all jurisdictions. They related mostly to provocation and evidence of self-defence (where this does not amount to a defence to the charge), with various allowances for consideration of age, addiction, mental illness and a defendant’s health and good character or exemplary conduct, as well as where the assault was an isolated incident.
Taking a closer look at crime trends and statistics in Scotland, the review explains that assaults make up a large volume of proceedings brought before court and that, although the number of convictions has reduced in the last decade, conviction rates remain high.
Custodial sentences were more common for attempted murder and serious assault offences (compared to less serious assaults), while attempted murder and serious assault offences have also seen the largest increase in average custodial sentence length over the last 10 years (when compared to less serious assaults).
According to the published case databases analysed by the authors of the review, it is not uncommon that initial penalties for assaults are overturned on appeal. This reflects some of the challenges when it comes to sentencing these offences.
The report also explores the perception of the sentencing of offences, including assaults, and that the level of public understanding of crime rates and sentencing is not always high. It outlines that assault offences are generally perceived to be serious, that previous relevant convictions influenced public perceptions on appropriate sentences, and that aggravating factors were given a stronger influence on the length of sentence than personal mitigating factors.
The Council is grateful to the authors of this comprehensive research, which will be of great assistance as it continues its work developing sentencing guidelines for Scotland.
Read the full literature review.
Read the blog.
The review was carried out by Dr Carly Lightowlers (pictured), Senior Lecturer Criminology, School of Law and Social Justice, University of Liverpool, and Professor Melissa Hamilton, Professor of Law & Criminal Justice, School of Law, University of Surrey.