Purposes and Principles of Sentencing(sections 1 and 2)
According to paragraph 8 of the Policy Memorandumthe policy objectives of these sections are:“To create astraightforward and transparent framework withinwhich sentencers can base their decisions in individualcases;thereby increasing general understanding of thepurposes and principles of sentencing and improvingconfidence in the sentencing process and the wider criminal justice system.” The RSE remains of theview that the purposes of sentencing are well knownand do not require to be embodied in statute. Howfar the individual purposes listed in section 1(1) applyin the particular case will obviously depend on itsnature and circumstances,and hence on the judgmentof the sentencer. It appears,therefore,that the listingof such purposes in statute serves no practical purpose.A public information leaflet would suffice. Makingthat information available in electronic and hard copyformat might have merit.
The same comment may be made in regard to section1 (3) and (4),which presumably are intended to setout“principles”of sentencing. The RSE makes twofurther comments. First,we note that section 1(3)creates what appears to be an open-ended statutoryduty,since it states that“Other matters to which acourt must have regard in sentencing an offender…include”, What are the other matters to which asentencer is to have a statutory duty to have regard?The potential extent of a statutory duty should surelybe clear. Secondly,we note that among the matterslisted in section 1(3) there is no mention of thesignificance of a plea of guilty. It may be said that thisis covered by section 2(4),or possibly section 1(3)(e),but the omission of a factor which may have asignificant effect on sentence is surprising. Theomission demonstrates the fact that these provisionsdeal with sentencing in a superficial manner,and donot facilitate public understanding.
While the purposes and principles of sentencing,as setout in the Bill,are well known,it is clear from thecontext that they may be affected by the sentencingguidelines issued by the Sentencing Council (seeparagraph 6.1.below),and accordingly they shouldnot be looked at in isolation. How they may beaffected is not transparent.
The Scottish Sentencing Council(sections 3 – 13 and schedule 1)
The RSE considers that these proposals are in conflictwith the principle of judicial independence. Thatindependence refers to both the independence of theindividual judge and to the institutional independenceof the judiciary. Both are indispensable if there is tobe a fair trial in accordance with article 6 of theEuropean Convention on Human Rights.Institutional independence requires that the judiciaryshould be independent of the executive. TheCommonwealth (Latimer House) Principles,whichwere endorsed by the Commonwealth Heads of Government in 2003,states in section IV:“Anindependent,impartial,honest and competent judiciary is integral to upholding the rule of law,engendering public confidence and dispensing justice.” Among the steps to be taken to secure thisaim is the following:“Interaction,if any,between theexecutive and the judiciary should not compromise judicial independence”(paragraph (d)).
It is our view that these proposals involve the kindof interaction between the executive and judiciarywhich would compromise the independence of the
judiciary.We will set out our views in more detail below,
by reference to certain salient features of the Bill.
The Sentencing Council would set sentencing policy,both as applied in its sentencing guidelines and moregenerally,with which courts would have to comply(see sections 4(b) and 5 (3) and (4)). Sentencingguidelines may relate not only to sentencing levels butalso the principles and purposes of sentencing (section5 (3)(a) and (b)). The powers of the SentencingCouncil are so generally expressed as to enable it tolay down guidelines as to how statutory rules in regardto sentencing should be interpreted.
Before publishing sentencing guidelines theSentencing Council must consult with the ScottishMinisters and the LordAdvocate (section 6(1)(b)),presumably in regard to their respective interests.Of particular interest to the Scottish Ministers would bethe resources implications of sentencing guidelines,
which the Sentencing Council must assess (section 5(5)).
In sentencing an offender or carrying out any other function relating to the sentencing of offenders,acourt (including an appeal court) must“have regardto”any sentencing guidelines which are applicable inrelation to the case. If the court decides not to followthe guidelines,it must state the reasons for its decision(section 7 (1) and (2)). Where the High Court of Justiciary passes a sentence in an appeal,and in doingso decides not to follow any relevant guidelinesor concludes the guidelines do not deal,or dealadequately,with a significant issue raised by theappeal,it may refer the sentencing guidelines to theSentencing Council and ask it to review them,givingreasons for its decision or conclusion. The SentencingCouncil must then review the guidelines and haveregard to the High Court’s reasons (section 9).
Of the total membership of the Sentencing Councilthe judiciary members (including the chairingmember) are in the minority (five out of twelve).