On 17 June 2021, the Scottish Sentencing Council ("SSC") finalised new guidelines setting out the process for all sentencing decisions in Scotland. The guidelines are to be submitted to the High Court for approval.

The SSC was established in October 2015. It is an independent advisory body with responsibility for preparing sentencing guidelines for the Scottish courts.

The aims of the SSC are to promote consistency in sentencing, to assist in the development of sentencing policy and to promote a greater awareness and understanding of sentencing through the publication of research, guidance and sentencing guidelines.

To date, the SSC has developed and published one guideline titled "Principles and purposes of sentencing". These new general guidelines are the second and have been a work in progress since the end of 2018. In due course, the SSC intends to publish offence-specific guidelines. Sentencing young people, death by driving, sexual offences and environmental and wild life crime are initial priority areas for the SSC.

What we know so far…

The general guidelines have been developed following a public consultation exercise, which identified that the publication of sentencing guidelines would improve public awareness and confidence in sentencing.

The draft guidelines are available on the SSC's website. They set out an eight-step process to explain how courts arrive at sentencing decisions. They are an important development in Scottish sentencing practice and procedure as this is the first time, other than on an incremental basis in decisions of the courts, that a codified statement on the approach to sentencing decisions in Scotland has been made.

Significance for corporate bodies

While the guidelines do not involve any significant departures to established practice, they do re-state a number of key considerations for corporate bodies facing prosecution:

  • The guidelines re-state the need for sentencing judges to have regard to any mitigating factors. This is an opportunity to present material to the court with a view to reducing the level of any penalty. On this basis, there are clear benefits to taking a proactive approach, with a view to collating evidence of relevant mitigation.
  • The guidelines also re-state the need for sentencing judges to take account of a guilty plea and, if appropriate, to apply a discount on the headline sentence, in order to reflect the utilitarian value of the guilty plea and the expense saved from avoiding the need for a potentially long-running and complex trial. Accordingly, there are clear benefits to early engagement and cooperation with regulators and the Crown Office and Procurator Fiscal Service where that is appropriate. This is important both for managing the response to any incident which results in a prosecution and also for maintaining positive working relationships with regulators going forward.

What's next?

Sheriff Principal Craig Turnbull, the Sheriff Principal member of the Council, has explained: "…the finalisation of this guideline will allow the Council to proceed apace with the significant task of developing offence specific guidelines, such as those for causing death by driving and sexual offences, which are dependent upon the framework that will be set out in the sentencing process guideline.

The SSC is due to publish its third Business Plan later this year, which will provide an insight into its current programme of work and timescales for the publication of further guidelines.

England and Wales Guidelines and their application in Scotland

In 2016, the Scottish Criminal Appeal Court formally approved the use by Scottish sentencing judges of the England and Wales Definitive Guidelines on Health and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences ("the England and Wales Guidelines").

The current position is that the England and Wales Guidelines may be used as a cross check, with comparable Scottish case law being the primary point of reference for assessing an appropriate level of fine. The value of the England and Wales Guidelines can be most clearly appreciated where there are no comparable Scottish cases for the Court to consider. For instance, Sheriff Gallacher commented in his sentencing statement in HMA v Cameron House Resorts:

"I should have regard to [the England and Wales] guidelines, but I should not seek to use them in a mechanistic or formulaic way... I have considered the general guidance of the Court in Scottish Power Generation Ltd v HMA in 2016 but I am unaware of any directly comparable Scottish case."

The England and Wales guidelines currently go further than their counterpart in Scotland by providing judges with a framework for selecting an appropriate sentence from a range, having regard to factors including culpability, seriousness of harm, risk and likelihood of harm, as well as the financial position of the company. This approach is helpful in offering consistency in sentences both north and south of the border, particularly in Scottish cases where there is no directly comparable case.

If you would like to discuss any of the issues discussed in this blog, please do not hesitate to get in touch with our Corporate Crime & Investigations team or your usual Brodies contact.