On 26 November 2018, Scotland's first Sentencing Guidelines came into force. This followed a consultation of the Scottish Sentencing Council. Whilst, the Guidelines will apply to all offenders who are sentenced on or after 26 November 2018, the Scottish Sentencing Council will produce guidelines on specific topics in due course.
The Guidelines
The core principle of the Sentencing Guidelines is that sentencing in Scotland must be fair and proportionate. This requires judges to:
- Consider all relevant factors of a case including the seriousness of the offence, impact on the victim and the circumstances of the offender;
- Ensure sentences are no more severe than is necessary to achieve the purposes of sentencing in each case;
- Ensure the reasons for the sentencing decision are stated clearly and openly as circumstances permit;
- Have regard to the Guidelines and make lawful sentencing decisions;
- Treat people equally and without discrimination; and
- Treat similar sentencing decisions in a similar way to assist with consistency and predictability. In this context, 'similar' means having features or factors in common.
The Guidelines will encourage clarity, openness and equality within the Scottish courts for both offenders and the public. The Scottish courts have long followed judicial precedent in deciding sentences and the Guidelines encourage transparency and consistency.
Lady Dorrian, the Lord Justice Clerk and chairman of the Scottish Sentencing Council said
...we expect that transparency in sentencing will increase, with more clarity around how particular decisions are reached and the various factors which are taken into account....This guideline will also form a strong foundation for our future work in developing further sentencing guidelines, including those which will apply to particular offences.
What Next?
Health & Safety Sentencing Guidelines have been in place in England & Wales since February 2016 and, although they did not technically apply in Scotland, they have been used as a cross check for sentencing in Scotland.
There is no date set for consultation on Scottish Health & Safety Sentencing Guidelines yet. However, the terms of the first set of Scottish Guidelines perhaps suggest that any future Scottish Guidelines for health and safety offences might have regard to their English and Welsh counterpart in order to promote fairness and consistency in approach across the UK.
The Scottish Sentencing Council has had the advantage of observing sentencing in England and Wales for almost 3 years under their Guidelines. We should expect specific Scottish Health and Safety Offences Guidelines in the future.
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