New Scottish sentencing guideline to promote consistency

The new guidelines on the sentencing process (19-page / 688KB PDF) apply to sentencing in criminal cases in Scotland with effect from 22 September. The guidelines set out a step-by-step framework which the court should follow to reach a sentencing decision, along with some of the factors which may be taken into account at each step.

Health and safety law expert Charlotte O’Kane of Pinsent Masons said that this multi-step approach “broadly mirrors” that outlined in the sentencing guidelines that apply to health and safety offences in England and Wales, produced by the Sentencing Council.

“The Sentencing Council’s definitive guideline applies only to England and Wales, however, courts in Scotland are expected to have regard to these guidelines when sentencing health and safety offences in Scotland,” she said.

“The new guidelines issued by the Scottish Sentencing Council must be followed by all courts in Scotland and, when considered in conjunction with the health and safety sentencing guidelines, will assist in ensuring a more consistent and predictable approach to sentencing for health and safety cases across Scotland,” she said.

Fiona Cameron of Pinsent Masons welcomed the similarities in approach.

“Whilst we are used to procedural differences north and south of the border, where legislation spans both – as with health and safety legislation – similar sentencing makes it easier for businesses operating UK-wide to understand and appreciate the potential consequences of infringing their obligations,” she said.

The new Scottish guideline contains eight steps which are themselves split into three categories: arriving at the ‘headline’ sentence; other considerations; and imposing the sentence.

First, the court must assess the seriousness of the offence by looking at the culpability of the offender and the harm caused, or which might have been caused, by the offence.

The second step involves the court selecting the sentencing range. This is the range of sentences within which the appropriate headline sentence for the offence appears to fall, having regard to its seriousness. The court should consult any existing sentencing guidelines which apply to the particular offence, along with the statutory minimum and maximum sentences and any relevant guideline judgments, when assessing the sentencing range.

The court should then identify any aggravating or mitigating factors which may impact on the sentence. The guideline provides some examples of aggravating and mitigating factors, but these lists are not exhaustive.

Once these three steps are complete, the court should then select an appropriate headline sentence. When doing so, the court should have regard to the purpose or purposes the sentence is intended to achieve. These purposes may include protection of the public; punishment; rehabilitation of the offender; giving the offender the opportunity to make amends; and, expressly, disapproval of offending behaviour. The court should also have regard to any statutory provisions relating to the specific offence for which the offender is being sentenced.

The headline sentence figure is then subject to adjustment for factors including whether the offender pled guilty to the offence and the stage of proceedings at which the plea was entered. Adjustments will also be made to take into account any time spent by the offender in custody, and any ancillary orders which may be imposed by the court.

Finally, the court must impose its sentence and provide reasons for doing so.

Sheriff principal Craig Turnbull, chair of the Scottish Sentencing Council’s sentencing process committee, described the new guideline as a “significant milestone” towards making sentencing in Scotland “more open and transparent”.

He added that the council was now developing sentencing guidelines for specific offences.