How distinctive is Scotland’s new approach to sentencing guidelines?

By Dr Jay Gormley and Professor Julian V. Roberts


The new causing death by driving offences guideline is the first offence-specific guidance issued by the Scottish Sentencing Council. It is certainly a distinctive moment for the UK jurisdiction, which has its own unique criminal justice system and legal and cultural history. But how unique is this guideline?


The common ground

With this guideline, Scotland joins the large (and growing) number of countries that have introduced sentencing guidelines. All sentencing guidelines share common objectives: to promote consistency and increase transparency. The new Scottish guideline aims to achieve these goals by providing judges with sentence ranges and lists of the key factors to consider when sentencing commonly encountered offence and offender combinations.

As with elsewhere, the guidelines will benefit the Scottish public who will, simply by accessing the guideline on the Council’s website, be able to see the types of sentences courts are likely to impose. Additionally, the public can review the more common and important aggravating and mitigating factors taken into account at sentencing and gain insight into the method courts in Scotland follow in determining sentences. People in countries without guidelines must consult a lawyer or undertake their own legal research to access such information.

The Scottish public are not the only beneficiaries. Victims, practitioners, and all stakeholders can also more clearly see the kinds of sentences Scottish courts are handing down for these crimes. This transparency makes it easier to come to an informed view as to what might be expected. Again, people in countries without guidelines have no such frame of reference.


The distinctive structure of the Scottish guidelines

Sentencing guidelines around the world vary greatly in form and function. Some — such as those found in Minnesota and many other US states — are restrictive, requiring courts to impose a sentence within a narrow range. Others, including the new Scottish guideline, are far more flexible. They permit judges considerable discretion to craft a sentence that reflects the individual circumstances of each case. Where appropriate, Scottish sentencers are free to depart from the ranges set out in the guidelines although they must explain their reasons for doing so (such as where a case is more or less serious than envisaged by the guideline which reflects more typical cases).

The Scottish guideline also differs from its near neighbour. Unlike the England and Wales guidelines, the Scottish guideline does not seek to provide a notional starting point and instead only provides a suggested range. In this way, Scotland’s approach is more discretionary. The Scottish sentencing guidelines are also more judicially-driven than those in several other jurisdictions: they must be approved by the High Court of Judiciary before they can take effect. By contrast, the English and Welsh sentencing guidelines automatically become effective once the Sentencing Council of England and Wales issues them.


The distinctive content of the Scottish guideline

The guideline considers the unique elements of Scotland’s public and criminal justice culture. To provide but a few examples of these sui generis traits: Scotland has a statutory presumption against short sentences; unique release points for custodial sentences; its own version of community sentences (the community payback order); its own prosecution service that decides how to charge offences (the offences themselves can also vary); and its own ethos regarding the principles and purposes of sentencing. These unique elements, and many others, mean that drawing simple parallels between Scotland and other jurisdictions is not as easy as it would appear. Indeed, while comparisons are possible and highly valuable, they are fraught with difficulty if one wishes to compare apples to apples.

The Scottish Sentencing Council has undertaken significant work to reflect all of these distinct Scottish factors within the guidelines. In developing the guideline, while the Council has wisely drawn on the experiences of other jurisdictions, it has not simply replicated them. Notably, public opinion on sentencing is notoriously difficult to gauge accurately given the misconceptions that permeate the zeitgeist. The Scottish Council took note of how England and Wales seek to ensure that sentencing practices are connected to community values. Previously, England and Wales were the only guidelines Council to consult and engage with the public to a significant since none of the US-based sentencing councils conduct original public opinion research when constructing their guidelines. The Scottish Sentencing Council drew on this and conducts its own public opinion research as part of its guideline development process.

The result of the guideline development process is that the sentence ranges provided are based on current judicial practice and a comprehensive review that includes public and professional consultation. From this, the guideline identifies the three most common sentence ranges within the Scottish experience. Thus, these ranges are not maximum or minimum sentences but rather what appears likely in a typical spread of cases of this type in Scotland – with discretion to depart from the ranges should a case be atypical. It is a fine balance that seeks to promote consistency and transparency while retaining the Scottish tradition of judicial discretion to do justice in individual cases.


The future

Going forward, one of the key benefits of sentencing guidelines and their review is that they provide a dynamic way of changing sentencing practices. Without such guidelines, sentencing practices change only slowly, over time as the courts issue judgments as and when cases arise without the time and resources to consult or pre-plan. Guidelines are also more democratic in the sense that stakeholders and indeed the general public can provide feedback during periodic consultations.

For now, the impact of these (and subsequent) guidelines should be carefully monitored and evaluated in the coming years. The English Council has amended several of its guidelines to improve its effectiveness and to correct problems identified by sentencers and other practitioners. The Scottish Council should undertake the same self-critical approach to its work. Indeed, SSC has committed to evaluating its guidelines after implementation. However, already, by issuing its first offence-specific guideline the Council has taken an important step towards more consistent and transparent sentencing in Scotland.