Still considerable work required to demystify sentencing - John Scott QC

Over recent years, there has been significant progress in making courts and, in particular, sentencing more transparent, for example, with the greatly increased use of sentencing statements by Sheriffs and Judges in which they explain their sentencing decisions.

However, sentencing remains a complex and potentially confusing topic and, as both a QC and a former member of the Scottish Sentencing Council, I am aware that there still considerable work to do to demystify sentencing and explain to the public how decisions in court are reached.

When sentences are imposed, those involved in the case – victims, those being sentenced and the families of both can sometimes, can struggle to fully understand the sentencing process.

It is maybe not surprising, given the heightened emotions, that it can be difficult to take it all in. Common questions I hear following a sentencing hearing are, “what did all that mean?” or “how did the judge arrive at that sentence?”.

So how can this be resolved? Part of the answer, I believe, is the work being carried out by the Scottish Sentencing Council. Established in 2015, the Council has been tasked with creating sentencing guidelines for Scotland’s courts – helping judges make decisions and assisting the public in understanding those decisions – and with promoting greater awareness and understanding of sentencing.

Sentencing guidelines are important because courts have to take them into account when sentencing offenders in a relevant case.  And if they don’t follow them, they have to explain why.

While I was on the Council, we decided that, as a first step, it was important to develop some general guidelines setting out the basics of how sentencing works.

The Council’s first guideline, outlining the principles and purposes of sentencing, was approved by the High Court last year and has been in force since November. That guideline confirms that the core principle of sentencing in Scotland is that all sentences must be fair and proportionate, and sets out the various purposes which sentencing may seek to achieve – such as public protection, rehabilitation, and punishment.

The Council has now developed a second general guideline, which explains the sentencing process itself. It sets out an eight-step process for sentencing and explains the various factors which may be taken into account as part of that process.

The first few steps deal with the offence itself, explaining how the overall seriousness of an offence should be assessed by reference to both the culpability of the offender – how blameworthy they are – and the harm they have caused. These initial steps also include an assessment of aggravating and mitigating factors – facts and circumstances which may make the offence more or less serious for sentencing purposes.  

The guideline goes on to provide guidance on other considerations which may affect the final sentence, such as the offender pleading guilty, or them having already spent some time in custody while awaiting trial. And the final step, of course, is for the court to impose a sentence and state why that sentence has been selected.

All of these steps are explained in the guideline as clearly and simply as possible.

While this won’t answer all questions about sentencing, I believe it is a significant step in making the process more transparent and more understandable, showing how sentencing decisions are reached in a logical, consistent way.

The guideline is only in draft form, however, and the Council is now looking for your help to complete it. A public consultation is currently being carried out, which is a vital part of the guideline development process – in order to ensure that guidelines are of use to the public as well as to judges and legal practitioners, the Council needs feedback from members of the public.  

I would urge all those with an interest in sentencing to participate in this consultation exercise, which is an opportunity to help shape the development of this guideline and make the sentencing process clearer and more transparent for all. Even if you don’t want to respond to the consultation, please read the consultation document as it may help to explain some aspects of the sentencing process at the moment. ”

John Scott QC Solicitor Advocate

To take part in the consultation on the sentencing process guideline go to https://consultations.scottishsentencingcouncil.org.uk/. Consultation closes on Friday 6 September 2019.