Sentencing assault offences in Scotland

6 October 2022

Sentencing assault offences in Scotland

Our review sought to understand the sentencing for assault in Scotland. The crime of assault covers a wide range of actions and behaviours provided for in law in Scotland (from a verbal threat of harm to severe assault with permanent disfigurement and threat to life). Thus, a significant degree of discretion is permitted in sentencing such offences, with disposals ranging from a verbal warning through to life imprisonment, depending on severity.

At present, there are no offence-specific guidelines in Scotland concerning assault offences. Rather, sentencing is informed by considerations as set out in the general Sentencing process guideline and guided by case law and appeal judgements.

What do we know about the sentencing of assault offences in Scotland from case law?

A review of case law highlighted considerable variation in judgments on sentencing outcomes for cases of assault, mirroring gradations of severity and culpability.

The common reasons for judges to issue stricter penalties were the following:

• The use of a weapon, such as a knife, gun, or heavy object
• Causing severe injury or likelihood of death
• The attack of a particularly vulnerable person, such as a child or an infirm person
• The offender acted intentionally or recklessly
• The attack was repeated or prolonged

Consideration of (violent) offending history was also a key feature considered in sentencing assault offences. Furthermore, while a defendant’s voluntary intoxication (owing to drugs and/or alcohol) is assumed to aggravate offending according to the general Scottish Sentencing process guideline, this approach has received opposition in other jurisdictions such as Australia.

Consideration of mitigating factors for assault offences were fewer in number and comprised mostly mitigation associated with provocation and some evidence of self-defence, even if it did not amount to a full defence. There was also some consideration of a defendant’s age, (mental) health and good character/exemplary conduct as well as where the assault was deemed to be an isolated incident.

Public perceptions of sentencing tend to agree with case law in terms of a desire to punish more severely when the offender caused greater harm. The public favour retributive (punishment) or denunciative (expressing disapproval) purposes for sentencing assault offences, although with a willingness to consider multiple sentencing philosophies simultaneously (for example, rehabilitation alongside punishment).

What do the statistics tell us about the sentencing of assault offences in Scotland?

Common assaults comprise a large volume of the proceedings brought before court (10,531 in 2019-20 - the lowest number of such offences since 2010-11). Conviction rates for assault offences also remain high (79% for common assaults).

Mirroring offence severity, custodial sentences were more common for attempted murder and serious assault offences (compared to less serious assaults).

Further research and more granular data analysis of assault offences and their gradations is encouraged to delve more specifically into the way in which assault offences are sentenced based on severity, offending history and other pertinent case characteristics (e.g. weapon use and intoxication) as well as characteristics of both the defendants and victims (e.g. age, sex, ethnicity).

Dr Carly Lightowlers (University of Liverpool) and Prof Melissa Hamilton (University of Surrey)

Read the full report.