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01. INTRODUCTION
Sentencing Guidelines and the Scottish Sentencing Council
1.1 The judicially-led Sentencing Commission, set up by the previous administration, examined the issue of consistency in sentencing. The central recommendation of the Commission's 2006 report, The Scope to Improve Consistency in Sentencing, was the creation of a procedure for giving effect to sentencing guidelines. The late Lord Macfadyen, the Commission's Chair, recorded in his foreword:
"It is generally accepted that there should be consistency in sentencing at every level of our courts. That is an aspect of fairness and justice. These principles demand that similar crimes committed in similar circumstances by offenders whose circumstances are similar should attract similar sentences. Consistency in sentencing is thus important not only to the offender, but also to those directly affected by the crime and to the public, since a perception of inconsistency in sentencing is likely to lead to a loss of public confidence in the criminal justice system..…[Guidelines] would, we consider, promote and encourage consistency of approach, and thus improve consistency in sentencing, while preserving the important element of judicial discretion." 1
1.2 At the time of the last General Election, we made clear in our manifesto that we supported this stance and stated that:
"Our solution is to create a new Sentencing Council to provide sentencing guidelines for the Judiciary. This will increase consistency, fairness and transparency in sentencing so that there is increased public confidence that justice is being done.
The final decision on a sentence based on the facts of the case would be for the Judge or Sheriff." 2
1.3 Additionally, the independent Scottish Prisons Commission recommended in its July 2008 report that:
"To drive forward consistency and improve the effectiveness of sentencing.....the Government [should] establish an independent National Sentencing Council ( NSC) to develop clear sentencing guidelines that can be applied nationwide."3
1.4 In this consultation paper we shall not go over the ground covered by either the Sentencing Commission or the Prisons Commission. Instead we shall set out our plans for the establishment of a Scottish Sentencing Council to produce sentencing guidelines. We firmly believe that such a body is needed and that it will improve consistency and transparency in sentencing and so crucially improve public confidence in our criminal justice system.
1.5 At present, sentencing practice in Scotland operates mainly on a case-by-case basis in the criminal courts, with reference to the wide experience of sentencers in criminal cases and Appeal Court decisions. This is supplemented by legislation where Parliament has made specific provision about the use of certain sentencing options or about sentencing for certain offences, and by the Appeal Court's little-used power to issue guideline judgements 4. In addition, textbooks such as Morrison and Nicholson gather together information on sentencing law and practice. As a result, it is difficult for the Scottish public to properly understand the sentencing process, or to see clearly the reasons behind decisions in individual criminal cases. This has helped to create a common perception that sentencing in our courts is inconsistent which, consequently, has had a negative effect on public confidence in the criminal justice system.
1.6 Much has been done in recent years to improve the public perception of the criminal justice system - High Court reform and improved support for victims and witnesses are just two examples - but it is important to keep building on this work and make sure that every part of the system is contributing to the improvement. If people do not have confidence in the criminal justice system, they are unlikely to feel that they live in a safe, strong, Scotland.
1.7 There is a view, especially amongst practitioners, that sentencing is not inconsistent but instead is individualised and tailored to the facts and circumstances of each case. We respect this view and recognise the importance of judicial discretion in determining the appropriate sentence in each case. However, the Sentencing Commission examined the available evidence and concluded that, even though there is little empirical evidence to support the contention that widespread inconsistency in sentencing exists in Scotland, the public perception of inconsistency was well founded. That perception is itself something that must be addressed. It is only right and proper that sentencing should focus on the particular aspects of an offence and the circumstances of the offender but that does not mean that it cannot be within expressed parameters.
1.8 We believe that the public should be able to understand the sentencing process. Furthermore, people have a right to expect that this process will take account of their interests and concerns, just as those interests and concerns are taken into account when the law itself is made, through the representations of democratically elected MSPs, MPs and MEPs.
1.9 In recent years, sentencing has also become more complex than was traditionally the case in previous decades. An increasing range of factors must be taken into account before any decision on the appropriate sentence in an individual case can be made - these include possible aggravating and mitigating factors, background information on the offender, the impact on the victim, and the growing array of disposals available to sentencers. While this can on occasion be a difficult and complex process for even experienced sentencers to navigate, it is often nearly impossible for ordinary members of the public to follow.
1.10 Furthermore, we recognise that sentencing decisions are not made in isolation. They have consequences for other parts of the criminal justice system which must implement the sentence when the offender leaves court, and which try to ensure that the individual does not offend again in the longer term. These decisions also have a significant impact on the delivery of other criminal justice initiatives. There would be little point, for example, in the steps we are taking to revitalise community penalties if we could not be reasonably sure that there would be a reaction in terms of how they are used by sentencers. We consider that these issues need to be addressed, and that there is room for dialogue between sentencers, other criminal justice professionals, and the Government in doing so.
1.11 We are therefore satisfied that the Sentencing Commission's recommendation to create a regime of sentencing guidelines should be taken forward. It is our
view that such a regime would ensure greater consistency, fairness and transparency in sentencing, and help to reassure the public that justice is being done.
1.12 We expect that guidelines would be varied in nature, depending on their subject matter. Some might provide narrative guidance, for example on overarching issues such as aggravating factors or repeat offending, and provide a framework on which sentencers could base their reasoning. Others might set out a mixture of narrative and numerical guidance, setting out the appropriate range of sentences - both custodial and non-custodial - for a particular offence, and allowing for upward or downward adjustment depending on the facts and circumstances of the case.
1.13 There is no question that the final decision on sentencing in an individual case would be for anyone other than the sentencer. It is they who hear the facts pertaining to the case. We do not want a system of guidelines that specifies the 'correct' sentence for each case. The discretion of sentencers will still be vital in using the system of guidelines eventually created to tailor the sentence to the offence and offender. Where, however, a sentence was imposed outwith the range provided by a guideline, we think that the sentencer should be required to explain in full his or her reasons for departing from that guideline. The regime we envisage would be less prescriptive than that in the majority of Western jurisdictions - including England and Wales - with the fundamental principle of judicial discretion remaining at the core of the system.
1.14 As the Sentencing Commission's report recorded, sentencing guidelines are a feature of a number of jurisdictions, such as England and Wales, numerous states in the USA, and various countries in Western Europe. The degree of prescription varies. In developing our policy in this area we have taken particular notice of the model proposed by the New Zealand Law Commission in its report Sentencing Guidelines and Parole Reform, and the subsequent Sentencing Council Act which came into force in November 2007 and provides for the establishment of a statutory Sentencing Council. The New Zealand model is particularly attractive given the country's similarity to Scotland in terms of population and legal system (for example, New Zealand, like Scotland, is predominantly a common law jurisdiction). Brief summaries of the systems currently in operation in New Zealand and England & Wales have been provided at annexes A and B to this document.
1.15 While it would be possible to set up some sort of Sentencing Council on a purely administrative basis, we do not consider that this is the best option. To give the Council and the product of its work the weight and status that we believe it should have, we think that the new body, and the guidelines that it promulgates, should be underpinned by statute.
Statutory statement of the purpose and principles of sentencing
1.16 The Sentencing Commission also considered that a useful step towards the elimination of any unwarranted disparities in sentencing would be to enshrine the purpose of sentencing in statute. The Commission made particular reference to the provisions of New Zealand's Sentencing Act 2002, which sets out both the purposes and the principles of sentencing. A similar approach has already been adopted in England and Wales through sections 142 of the Criminal Justice Act 2003, which creates a statutory purpose for sentencing which the courts must have regard to when dealing with an offender.
1.17 As with sentencing guidelines, we consider that similar legislation could play a useful role in Scotland. If we are to improve public confidence in our criminal justice system, it is important that we are able to lay out clearly and unequivocally the overarching function and rationale behind the sentencing process itself.
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