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Chapter 10: Analysis of Sentencing Data
10.1 This chapter summarises the conclusions drawn from data on indictments and sentencing provided to the researchers by the Scottish Executive. A detailed statistical summary of this information is contained in Appendix 4, along with the tables which are referred to here.
10.2 The aim of the analysis was to assess the extent to which the increase in sheriffs' sentencing powers from a maximum of three years' imprisonment to five years' imprisonment, implemented on 1 May 2004 under section 13 of the Crime and Punishment (Scotland) Act 1997 (subsequently referred to as 'section 13'), has led to a shift of business from the High Court down to the sheriff courts.
Indictments
10.3 The number of indictments registered in the High Court in the 12 month period (May 2004 to April 2005) immediately after the implementation of section 13 shows a decrease of 12.1% from the number registered in the preceding 12 months (May 2003 to April 2004). 101 This represents approximately 160 cases, some or all of which obviously might be a result of cases now being pushed down to the sheriff courts that were previously being heard in the High Court. The problem, of course, is that one cannot be certain whether this decrease is simply a result of a general reduction in prosecutions for serious crime or whether it is a result of sheriffs' increased sentencing powers. In the next 11 months (May 2005 to March 2006) the number of indictments in the High Court fell by a further 8.3%, representing 92 cases, on the equivalent period in the preceding year. Again, it is impossible to tell the extent to which this represents a continuing general decline in prosecutions for serious crime or an increasing number of cases being shifted to the sheriff courts.
10.4 The number of indictments registered in the sheriff courts in the 12 month period (May 2004 to April 2005) immediately after the implementation of the sentencing legislation shows an increase of 9.9% on the number registered in the preceding 12 months (May 2003 to April 2004). 102 This represents around 500 cases, some of which are likely to be cases which formerly would have been prosecuted in the High Court. Again, one cannot be certain of the extent to which this increase simply reflects a general increase in the number of prosecutions rather than a downward shift of business from the High Court. It is worth noting that the number of indictments registered in the sheriff courts in the next 11 months (May 2005 to March 2006) rose by a further 4.2%, representing 217 cases, on the equivalent period in the preceding year. It is impossible to tell how much of this is a result of cases which previously would have been prosecuted in the High Court now being heard in the sheriff courts as opposed to a general increase in criminal business.
Sheriff Court Sentencing Statistics
10.5 Prior to the implementation of section 13, sentences of over three years could be imposed in the sheriff courts, but only in very limited circumstances, namely in relation to bail offences by virtue of section 27(9) of the 1995 Act. In the 12 month period leading up to the reform, only 13 such sentences were handed down. Following the increase in sheriffs' sentencing powers, however, 127 sentences of over three years were imposed in the sheriff courts in the 12 month period from May 2004 to April 2005. Taking into account sentences that may have been imposed in relation to bail offences, it can reasonably be assumed that sheriffs used their new, increased power on the vast majority of these occasions. It is also reasonable to assume that much, if not all, of this represents business that would otherwise have been dealt with in the High Court and thus denotes a relative reduction in High Court business.
10.6 In the next 11 months (May 2005 to March 2006), 138 sentences of over three years were imposed in the sheriff courts, and again it seems reasonable to assume that most of these were cases which previously would have been prosecuted in the High Court.
High Court Sentencing Statistics
10.7 Table 8 of Appendix 4 shows that, in the 12 months preceding the increase in sheriffs' sentencing powers (May 2003 to April 2004), the High Court imposed sentences of five years and under in 69.6% of cases. In the following year (May 2004 to April 2005), the High Court imposed sentences of five years and under in 67.5% of cases, and in the next 11 month period, the relevant proportion was 67.8%. Thus, the pushing down of some cases to the sheriff courts appears to have made little or no difference to the pattern of sentencing in the High Court. The same applies when one looks at the proportion of sentences of three years or under, which remains very similar before and after the implementation of section 13. 103
10.8 It is perhaps surprising that the analysis of sentences in Table 8 of Appendix 4 provides no indication that the High Court is imposing relatively fewer short sentences of imprisonment when the number of sheriff court sentences of three years or over would have led one to suspect that a drop would have occurred. Put simply, the increase seen in the number of sentences of over three years imposed in the sheriff courts should have manifested itself in a significant decrease (of around 100) in the number of sentences of between three and five years in the High Court. One possible explanation might be that the guidance issued in Du Plooy v HM Advocate104 on sentence discounting for early guilty pleas, combined with a greater number of early pleas resulting from Du Plooy and the new disclosure regime, has led to lower sentences in the High Court and thus a greater proportion of sentences of five years and under being passed, this compensating for any decrease in the proportion of sentences of five years or under caused by the increase in sheriffs' sentencing powers.
Conclusion
10.9 It is not possible to state with any degree of certainty the extent to which the increase in sheriffs' sentencing powers has led to a shift in business from the High Court to the sheriff courts. A combination of the data on the number of indictments registered in both the High Court and sheriff courts and, more significantly, the information on sheriff court sentences of over three years does lead to the tentative conclusion that some cases have been pushed down into the sheriff courts. The sentencing statistics for the High Court are less persuasive in that the proportion of sentences of five years or less, or three years or less, has not declined to any significant extent. Overall, however, it seems reasonable to suggest that around 100 to 150 cases per year have been taken out of the High Court and are now being prosecuted in the sheriff courts as a result of sheriffs' increased sentencing powers.
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