The Scottish Sentencing Council () is an

advisory non-departmental public body In the United Kingdom, non-departmental public body (NDPB) is a classification applied by the Cabinet Office, Treasury, the Scottish Government, and the Northern Ireland Executive to public sector organisations that have a role in the process of na ...

Scotland Scotland is a Countries of the United Kingdom, country that is part of the United Kingdom. It contains nearly one-third of the United Kingdom's land area, consisting of the northern part of the island of Great Britain and more than 790 adjac ...

that produces

sentencing guidelines Sentencing guidelines define a recommended sentencing range for a criminal defendant, based upon characteristics of the defendant and of the criminal charge. Depending upon the jurisdiction, sentencing guidelines may be nonbinding, or their applic ...

for use in the

High Court of Justiciary The High Court of Justiciary () is the supreme criminal court in Scotland. The High Court is both a trial court and a court of appeal. As a trial court, the High Court sits on circuit at Parliament House or in the adjacent former Sheriff C ...

sheriff court A sheriff court () is the principal local civil and criminal court in Scotland, with exclusive jurisdiction over all civil cases with a monetary value up to , and with the jurisdiction to hear any criminal case except treason, murder, and ra ...

s and

justice of the peace court A justice of the peace court is the lowest authoritative type of criminal court in Scotland. The court operates under summary procedure and deals primarily with less serious criminal offences. History The commission of the peace was origina ...

Judges A judge is an official who presides over a court. Judge or Judges may also refer to: Roles *Judge, an alternative name for an adjudicator in a competition in theatre, music, sport, etc. *Judge, an alternative name/aviator call sign for a membe ...

sheriffs A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland, the , which is commonly ...

, and justices of the peace must use the guidelines to inform the sentence they pronounce against a

convict A convict is "a person found guilty of a crime and sentenced by a court" or "a person serving a sentence in prison". Convicts are often also known as "prisoners" or "inmates" or by the slang term "con", while a common label for former convicts ...

, and they must give reasons for not following the guidelines. The Scottish Sentencing Council was established by the

Scottish Ministers The Scottish Government (, ) is the executive arm of the devolved government of Scotland. It was formed in 1999 as the Scottish Executive following the 1997 referendum on Scottish devolution, and is headquartered at St Andrew's House in t ...

on 19 October 2015 under powers granted by the

Criminal Justice and Licensing (Scotland) Act 2010 In ordinary language, a crime is an unlawful act punishable by a state or other authority. The term ''crime'' does not, in modern criminal law, have any simple and universally accepted definition,Farmer, Lindsay: "Crime, definitions of", in Cane ...

. All sentencing guidelines are submitted to the High Court of Justiciary for approval, and the High Court may approve, amend, or reject the guidelines produced by the Council.

History

Macfadyen Report

The establishment of the Scottish Sentencing Council was a response to the report ''The Scope to Improve Consistency in Sentencing'', published in 2006 by Lord Macfadyen as part of the Sentencing Commission for Scotland. Lord Macfadyen identified that little research had been done into the consistency of sentencing, but that there was public perception that there is inconsistency. Lord Macfadyen defined consistency in sentencing as: In his report Lord Macfadyen did conclude that there was evidence of inconsistency, and did not agree that there should be variation between the sentences given to broadly similar cases. As such, he recommended the creation of the ''Advisory Panel on Sentencing in Scotland'' with powers broadly similar to the current Scottish Sentencing Council.

Scottish Parliament

Lord Macfadyen's report was written following an inquiry by the Justice 1 Committee of the

Scottish Parliament The Scottish Parliament ( ; ) is the Devolution in the United Kingdom, devolved, unicameral legislature of Scotland. It is located in the Holyrood, Edinburgh, Holyrood area of Edinburgh, and is frequently referred to by the metonym 'Holyrood'. ...

in 2002. In its report ''Public Attitudes Towards Sentencing and Alternatives to Imprisonment'', the Committee found that the public had limited knowledge of the sentencing powers of the

courts of Scotland The courts of Scotland () are responsible for administration of justice in Scotland, under Primary and secondary legislation, statutory, common law and Equity (law), equitable provisions within Scots law. The courts are presided over by the jud ...

, and that the public felt the courts were too lenient. However, they also found that the public were supportive of measures such as Drug and Treatment Orders, and that members of the public gave broadly similar punishments to the courts in real life. Another issue arose was the public demand for

truth in sentencing Truth in sentencing (TIS) is a collection of different but related public policy stances on sentencing of those convicted of crimes in the justice system. In most contexts, it refers to policies and legislation that aim to abolish or curb parole ...

, and that the public were cynical and distrustful because of automatic early release. Truth in sentencing is the belief that when a judge sentences an offender to, say, 3 years in prison that they should spend 3 years in prison.

Proposal for a sentencing council

Scottish Government

In response to Lord Macfadyen's report the Scottish Government proposed the creation of Scottish Sentencing Council, but their initial proposal was not well received by the legal profession or

judiciary The judiciary (also known as the judicial system, judicature, judicial branch, judiciative branch, and court or judiciary system) is the system of courts that adjudicates legal disputes/disagreements and interprets, defends, and applies the law ...

in Scotland. The Scottish Government's proposal was for the Council's guidelines to be binding on appeals court (the High Court of Justiciary at the time), and the appeal courts only able to request to the Council to revise its guidelines. The proposed structure of the Council only had 3 judicial members (1 High Court judge, 1

Sheriff A sheriff is a government official, with varying duties, existing in some countries with historical ties to England where the office originated. There is an analogous, although independently developed, office in Iceland, the , which is common ...

, and 1 ''

stipendiary magistrate Stipendiary magistrates were magistrates that were paid for their work (they received a stipend). They existed in the judiciaries of the United Kingdom and those of several former British territories, where they sat in the lowest-level criminal ...

'' or justice of the peace) with 5 other members. The other 5 members were proposed to be 1

prosecutor A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

, 1 representative of

Association of Chief Police Officers in Scotland The Association of Chief Police Officers in Scotland (ACPOS) was the professional voice of police leadership ( Chief Constables, Deputy Chief Constables and Assistant Chief Constables) in Scotland, including the Assistant Chief Constable in the Br ...

, 1

advocate An advocate is a professional in the field of law. List of country legal systems, Different countries and legal systems use the term with somewhat differing meanings. The broad equivalent in many English law–based jurisdictions could be a ba ...

, 1

solicitor A solicitor is a lawyer who traditionally deals with most of the legal matters in some jurisdictions. A person must have legally defined qualifications, which vary from one jurisdiction to another, to be described as a solicitor and enabled to p ...

and 1 representative for victims' rights.

Response from Faculty of Advocates

Both the structure and remit of the Council faced opposition from the

Faculty of Advocates The Faculty of Advocates () is an independent body of lawyers who have been admitted to practise as advocates before the courts of Scotland, especially the Court of Session and the High Court of Justiciary. The Faculty of Advocates is a const ...

and the Sheriffs' Association (representing the permanent and salaried sheriffs of Scotland) who both challenged the judicial minority on the Council, and the binding nature of the guidelines. The Faculty of Advocates proposed there should be at least 2 High Court judges, 1 sheriff, and 1 part-time sheriff to increase the judicial membership of the Council. The Faculty also rejected the attendance of an observer from the Scottish Government.

Response from Sheriffs' Association

The Sheriffs' Association asserted that the proposals would erode

judicial independence Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan inte ...

, and by unanimous decision the Council of the Association rejected the entire proposal for a sentencing council. Nonetheless, recognising that such a Sentencing Council would be created the Association asserted that it should have a judicial majority. The Sheriffs' Association asserted that the appeal courts should remain the final arbiter of any sentencing guidelines, and that judges should not be ''named-and-shamed'' for deviating from the guidelines. The Sheriffs' Association concurred with the Faculty of Advocates in rejecting an observer from the Scottish Government.

Response from High Court

The

was as emphatic in its rejection of the relationship between the proposed Sentencing Council and any appeal court finding the proposals "unsatisfactory, unworkable and unacceptable." Agreeing with both the Faculty of Advocates and Sheriffs' Association that it would erode judicial independence. The High Court concluded it would remove the Court of Criminal Appeal as the final arbiter of sentencing policy, and removing any discretion or ability to direct from the appeal courts. They asserted it remove any separation of powers between the judiciary, executive, and legislature. The response of the High Court called for 2 High Court judges, 2 sheriffs, and possibly a

Sheriff Principal In Scotland a sheriff principal (''pl''. sheriffs principal) () is a judge in charge of a sheriffdom with judicial, quasi-judicial, and administrative responsibilities. Sheriffs principal have been part of the judiciary of Scotland since the ...

Response from Scottish Women's Aid

Scottish Women's Aid were deeply concerned about inconsistency in sentencing, highlighting that sheriffs had recognised the problem, and wanted the Sentencing Council to address this. Scottish Women's Aid asserted that there should be more than one victims' right advocate on the Council, but they agreed with the High Court, Sheriffs' Association and Faculty of Advocates that the appeal courts should have the power to vary (dismiss, reduce, or increase) the sentence of convicts.

Judicial independence

England and Wales

England and Wales England and Wales () is one of the Law of the United Kingdom#Legal jurisdictions, three legal jurisdictions of the United Kingdom. It covers the constituent countries England and Wales and was formed by the Laws in Wales Acts 1535 and 1542. Th ...

the guidelines produced by the

Sentencing Council The Sentencing Council for England and Wales is a non-departmental public body that is responsible for developing sentencing guidelines, monitoring the use of guidelines and assessing and reviewing a wide range of decisions relating to sentenc ...

are more prescriptive in nature, with the

Courts of England and Wales The Courts of England and Wales, supported administratively by His Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales. Except in constitutional matters, ...

required to follow the guidelines, as required by the Coroners and Justice Act 2009, which states:

Royal Society of Edinburgh

The

Royal Society of Edinburgh The Royal Society of Edinburgh (RSE) is Scotland's national academy of science and letters. It is a registered charity that operates on a wholly independent and non-partisan basis and provides public benefit throughout Scotland. It was establis ...

in considering the establishment of the Scottish Sentencing Council looked at the example of England and Wales, with the more binding nature of guidelines, and identified that many more crimes in England and Wales have sentences prescribed by statute than is the case in Scotland. It was their assertion that the original proposal, with a predominantly lay Council, and guidelines that were binding on the

Appeal Court An appellate court, commonly called a court of appeal(s), appeal court, court of second instance or second instance court, is any court of law that is empowered to hear a case upon appeal from a trial court or other lower tribunal. Appellate ...

would: They went to question if such a situation would allow the Appeal Court to be regarded as independent and impartial tribunal under Article 6 of the

European Convention on Human Rights The European Convention on Human Rights (ECHR; formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is a Supranational law, supranational convention to protect human rights and political freedoms in Europe. Draf ...

. The Royal Society of Edinburgh expressed further concerns that sentencing was to be determined solely by the Council, and not by either the High Court of Justiciary or the

, and that the direct involvement of the

Lord Advocate His Majesty's Advocate, known as the Lord Advocate (), is the principal legal adviser of both the Scottish Government and the Crown in Scotland for civil and criminal matters that fall within the devolution, devolved powers of the Scottish P ...

in sentencing would further erode judicial independence.

Neil Hutton

Professor Neil Hutton, who could go on to be appointed as a Lay Member of the Council, wrote a research paper on involving the public in sentencing policy, and observed that no judiciary has sole control over sentencing. He stated that, Which addressed both public misconceptions, and assertions around judicial independence. Which highlighted in a report from the

Justice Select Committee The Justice Select Committee of the United Kingdom is a Select committee (United Kingdom), select committee of the House of Commons of the United Kingdom, House of Commons which scrutinizes the policy, administration, and spending of the Ministr ...

of the

House of Commons The House of Commons is the name for the elected lower house of the Bicameralism, bicameral parliaments of the United Kingdom and Canada. In both of these countries, the Commons holds much more legislative power than the nominally upper house of ...

in 2009, where it was recognised that Parliament, as a legislature, was responsible for defining the overall framework.

Scottish Government

The

Scottish Government The Scottish Government (, ) is the executive arm of the devolved government of Scotland. It was formed in 1999 as the Scottish Executive following the 1997 referendum on Scottish devolution, and is headquartered at St Andrew's House in ...

affirmed its commitment to judicial independence in both the

Judiciary and Courts (Scotland) Act 2008 The Judiciary and Courts (Scotland) Act 2008 is an Act of the Scottish Parliament passed in October 2008 to reform the courts of Scotland, to give statutory force to judicial independence, and to establish the Lord President of the Court of Sessio ...

and the

Courts Reform (Scotland) Act 2014 The Courts Reform (Scotland) Act 2014 (asp 18) is an Act of the Scottish Parliament passed in October 2014 to improve access to the civil justice system and while making the Court of Session The Court of Session is the highest national co ...

, and agreed that it was important that there remain judicial discretion in sentencing, stating: The Council as established would have a judicial majority, have its guidelines subject to ratification, rejection, or amendment by the High Court of Justiciary, and the Appeal Court would be able to set aside the guidelines when determining an appeal.

Establishment

The

as enacted had the

Lord Justice Clerk The Lord Justice Clerk is the second most senior judge in Scotland, after the Lord President of the Court of Session. The current Lord Justice Clerk is Lord Beckett, who was appointed to the position on 4 February 2025, succeeding Lady Dorr ...

as chair of the Council ''ex officio'' and granted a judicial majority on the Council. The Council was to have as judicial members a judge of the

Outer House The Outer House (abbreviated as CSOH in neutral citations) is one of the two parts of the Scottish Court of Session, which is the supreme civil court in Scotland. It is a court of first instance, although some statutory appeals are remitted ...

who sat in the High Court of Jusiciary, a sheriff (who was not sheriff principal), 2 summary sheriffs or justices of the peace, and a sheriff principal. The Council was to have, as legally qualified members a prosecutor from the

Crown Office Crown Office may refer to: * Crown Office in Chancery, a department under the Ministry of Justice in the United Kingdom * Crown Office and Procurator Fiscal Service The Crown Office and Procurator Fiscal Service () is the independent public ...

, an

, and a

. As lay members the Council was to have a

constable A constable is a person holding a particular office, most commonly in law enforcement. The office of constable can vary significantly in different jurisdictions. ''Constable'' is commonly the rank of an officer within a police service. Other peo ...

, a victims' rights advocate, and a further lay member. The Scottish Sentencing Council was established by the

on 19 October 2015 under powers granted by the Criminal Justice and Licensing (Scotland) Act 2010. Out-law.com reported on 23 February 2015, that the establishment of the Scottish Sentencing Council had been brought by six months, to expedite the formulation of a more consistent system of sentencing in Scotland, but also creating one that was, in the words of Scottish Government, "less prescriptive" than found in other jurisdictions.

Remit and jurisdiction

Advisory and statutory

The Scottish Sentencing Council is an independent advisory non-departmental public body in Scotland, with that exists to ensure consistency in sentencing in the

s, and

s. It has been established to improve public confidence in

sentencing In criminal law, a sentence is the punishment for a crime ordered by a trial court after conviction in a criminal procedure, normally at the conclusion of a trial. A sentence may consist of imprisonment, a fine, or other sanctions. Sentences f ...

in Scotland, and at the same time ensure

. It is chaired by the

(the second most senior judge in Scotland), and its membership is composed of 5 members of the

, 3 lawyers, and 3 lay members. It has been established to ensure consistency and transparency.

Approval by High Court

The Scottish Sentencing Council has the authority to produce guidelines for approval by the

, that will guide judges, sheriffs, and justices of the peace on the

sentences The ''Sentences'' (. ) is a compendium of Christian theology written by Peter Lombard around 1150. It was the most important religious textbook of the Middle Ages. Background The sentence genre emerged from works like Prosper of Aquitaine's ...

they should pass on a

in Scotland. All sentencing guidelines are submitted to the High Court of Justiciary for approval, and the High Court may approve, amend, or reject the guidelines produced by the Council. Such guidelines are also subject to the authority of the Court of Criminal Appeal or

Sheriff Appeal Court The Sheriff Appeal Court () is a court in Scotland that hears appeals from summary criminal proceedings in the sheriff courts and justice of the peace courts, and hears appeals on bail decisions made in solemn proceedings in the sheriff co ...

who retain the power to issue guideline judgments that are binding on the

, and require the Council to review its guidelines.

Guideline judgments

Guideline judgments can be issued by the High Court of Justiciary (sitting as the Court of Appeal) and the

. The High Court guideline can issue guideline judgments under powers granted by Sections 118(7) and 189(7) of the Criminal Procedure (Scotland) Act 1995, and power to issue guidelines judgments is granted to the Sheriff Appeal Court by Section 48 of the

. In guideline judgments the

judges A judge is an official who presides over a court. Judge or Judges may also refer to: Roles *Judge, an alternative name for an adjudicator in a competition in theatre, music, sport, etc. *Judge, an alternative name/aviator call sign for a membe ...

or Appeal Sherrifs can give guidance on how sentencing should be handled in similar cases. Such guidelines are binding on other judges and sheriffs (for High Court guideline judgments) and on other sheriffs (for Sheriff Appeal Court judgments). The Sentencing Council will need to prepare or modify sentencing guidelines in response to such judgments. However, in 2007 a study by Millie, Tombs and Hough, comparing sentencing decisions between Scotland and England & Wales, noted that Scotland did not have a well developed body of guideline judgments, and that Sheriffs, Senators, and Justices of the Peace tended to consider how a sentenced might be perceived by the Court of Criminal Appeal. The authors also noted that judges in Scotland would welcome more guidance from the Appeal Court. The Scottish Sentencing Council's own website, as of 22 April 2017, only listed 5 guideline judgments for solemn cases, and 1 guideline judgment for summary cases. There were a further 7 cases that the Council regarded as providing guidance, but these were not issued under the Criminal Procedure (Scotland) Act 1995.

Sentencing guidelines

Business Plan 2015 to 2018

The first set of sentencing guidelines the Scottish Sentencing Council will seek to develop are guidelines on

wildlife Wildlife refers to domestication, undomesticated animals and uncultivated plant species which can exist in their natural habitat, but has come to include all organisms that grow or live wilderness, wild in an area without being species, introdu ...

and

environmental Environment most often refers to: __NOTOC__ * Natural environment, referring respectively to all living and non-living things occurring naturally and the physical and biological factors along with their chemical interactions that affect an organism ...

offences, and

causing death by dangerous driving Causing death by dangerous driving is a statutory offence in England and Wales, Scotland and Northern Ireland, as well as Hong Kong. It is an aggravated form of dangerous driving. In the UK, it was created by section 1 of the Road Traffic Act 198 ...

. Both are areas that are seen as complex, and can lead to difficult sentencing decisions.

Death by dangerous driving

The

Falkirk Herald ''The Falkirk Herald'' is a weekly newspaper and daily news website published by JPIMedia, National World. It provides reportage, opinion and analysis of news, current affairs and sport in the towns of Falkirk, Camelon, Grangemouth, Larbert, Ste ...

ran a campaign piece on 3 December 2016, on causing death by dangerous driving, where it highlighted public discontent with the apparent leniency of sentencing decisions in such cases. The Falkirk Herald stated that despite the maximum penalty for causing death by dangerous driving being 14 years

imprisonment Imprisonment or incarceration is the restraint of a person's liberty for any cause whatsoever, whether by authority of the government, or by a person acting without such authority. In the latter case it is considered " false imprisonment". Impri ...

, the average sentence between 2005 and 2015 was 4.8 years. It was their hope the Council would address this.

Membership

Appointment process

Appointment of the judicial and legally qualified members is regulated by ''The Scottish Sentencing Council (Procedure for Appointment of Members) Regulations 2015'', which require the Lord Justice General to convene a panel to hear applications for positions open to sheriffs, summary sheriffs, justices of the peace, advocate, and solicitor. The panel is recommend persons for appointment. At the same time, the Lord Justice General must consult the Dean of the

and the President of the

Law Society of Scotland The Law Society of Scotland () is the professional governing body for Scottish solicitors. Its goal is to promote excellence among solicitors through the support and regulation of its members. It is also committed to promoting the interests ...

before appointing an advocate or solicitor. The prosecutor is nominated by the Lord Advocate, and a

Senator A senate is a deliberative assembly, often the upper house or Legislative chamber, chamber of a bicameral legislature. The name comes from the Ancient Rome, ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior ...

and

sheriff principal In Scotland a sheriff principal (''pl''. sheriffs principal) () is a judge in charge of a sheriffdom with judicial, quasi-judicial, and administrative responsibilities. Sheriffs principal have been part of the judiciary of Scotland since the ...

can nominate themselves.

Current Council members

The members of the Scottish Sentencing Council as of 25 September 2021 were:

Secretariat

The Scottish Sentencing Council is supported by a

secretariat Secretariat may refer to: * Secretariat (administrative office) * Secretariat (horse) Secretariat (March 30, 1970 – October 4, 1989), also known as Big Red, was a champion American thoroughbred horse racing, racehorse who was the ninth winn ...

which is provided by the

Scottish Courts and Tribunals Service The Scottish Courts and Tribunals Service (SCTS) () is an independent Public bodies of the Scottish Government, public body which is responsible for the administration of the Courts of Scotland, courts and tribunals of Scotland. The Service is ...

, as required by order of the

in ''The Scottish Courts and Tribunals Service (Administrative Support) (Specified Persons) Order 2015'', under a power granted by Section 62 of the Judiciary and Courts (Scotland) 2008. The Secretariat is headed up by Ondine Tennant, who was appointed in October 2014, and holds an

LLB (Hons) A Bachelor of Laws (; LLB) is an undergraduate law degree offered in most common law countries as the primary law degree and serves as the first professional qualification for legal practitioners. This degree requires the study of core legal subje ...

in Law and Politics from the

University of Edinburgh The University of Edinburgh (, ; abbreviated as ''Edin.'' in Post-nominal letters, post-nominals) is a Public university, public research university based in Edinburgh, Scotland. Founded by the City of Edinburgh Council, town council under th ...

. She previously worked for the

Scottish Civil Justice Council Scottish usually refers to something of, from, or related to Scotland, including: *Scottish Gaelic, a Celtic Goidelic language of the Indo-European language family native to Scotland *Scottish English *Scottish national identity, the Scottish ide ...

. She is supported by various policy, legal, communication, and research officers.

Notes

References

{{Authority control 2015 establishments in Scotland Advisory non-departmental public bodies of the Scottish Government Scottish criminal law Penal system in Scotland

History

Macfadyen Report

Scottish Parliament

Proposal for a sentencing council

Scottish Government

Response from Faculty of Advocates

Response from Sheriffs' Association

Response from High Court

Response from Scottish Women's Aid

Judicial independence

England and Wales

Royal Society of Edinburgh

Neil Hutton

Scottish Government

Establishment

Remit and jurisdiction

Advisory and statutory

Approval by High Court

Guideline judgments

Sentencing guidelines

Business Plan 2015 to 2018

Death by dangerous driving

Membership

Categories

Appointment process

Current Council members

Secretariat

Notes

References