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CRIMINAL JUSTICE AND LICENSING (SCOTLAND) BILL: THE PROVISIONS IN REGARD TO THE PURPOSES AND PRINCIPLES OF SENTENCING AND THE SCOTTISH SENTENCING COUNCIL:

CRIMINAL JUSTICE AND LICENSING (SCOTLAND) BILL: THE PROVISIONS IN REGARD TO THE PURPOSES AND PRINCIPLES OF SENTENCING AND THE SCOTTISH SENTENCING COUNCIL:

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A d v ic e Pa p er (09-06)
APRIL 2009
CRIMINAL JUSTICE AND LICENSING (SCOTLAND) BILL: THE PROVISIONS IN REGARD TO THE PURPOSES AND PRINCIPLES OF SENTENCING AND THE SCOTTISH SENTENCING COUNCIL:

a response to the Scottish Parliament’s Justice Committee
Summary
• The RSE considers that the proposals for the Scottish Sentencing Council are in conflict with the principle of judicial independence. That independence refers to both the independence of the individual judge and to the institutional indep
A d v ic e Pa p er (09-06)
APRIL 2009
CRIMINAL JUSTICE AND LICENSING (SCOTLAND) BILL: THE PROVISIONS IN REGARD TO THE PURPOSES AND PRINCIPLES OF SENTENCING AND THE SCOTTISH SENTENCING COUNCIL:

a response to the Scottish Parliament’s Justice Committee
Summary
• The RSE considers that the proposals for the Scottish Sentencing Council are in conflict with the principle of judicial independence. That independence refers to both the independence of the individual judge and to the institutional indep

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Published by: The Royal Society of Edinburgh on Aug 01, 2011
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 Advice Paper 
 APRIL 2009
1
CRIMINAL JUSTICE AND LICENSING (SCOTLAND) BILL:THE PROVISIONS IN REGARD TO THE PURPOSES AND PRINCIPLESOF SENTENCING AND THE SCOTTISH SENTENCING COUNCIL:
a response to the Scottish Parliament’s Justice Committee
Summary
The RSE considers that the proposals for the Scottish Sentencing Council are in conflict with the principle of judicial independence. That independence refers to both the independence of the individual judge and tothe institutional independence of the judiciary. Both are indispensable if there is to be a fair trial inaccordance with article 6 of the European Convention on Human Rights.We consider that the purpose of the Sentencing Council is objectionable on constitutional grounds.Sentencing policy is,and should remain,a matter for the Parliament on the one hand and theAppeal Court on the other.It would be inappropriate and unconstitutional for the Scottish Ministers or the LordAdvocate to be seento be influencing the way in which sentences are imposed.It is wrong that in reaching its decisions any court should be subject to the determinations of a lay bodysuch as the Sentencing Council. This would be a gross derogation from the independence of the judiciaryand entirely unwarranted.We see the composition of the Sentencing Council as extremely important,and do not consider the proposed membership of the Council to be appropriate.While the purposes and principles of sentencing,as set out in the Bill,are well known,it is clear fromthe context that they may be affected by the sentencing guidelines issued by the Sentencing Council,and accordingly they should not be looked at in isolation. How they may be affected is not transparent.As regards the objective of consistency,we remind the Committee that the Sentencing Commission found that there was little empirical evidence of inconsistency in sentencing in Scotland.This considerationindicates that sentencing guidelines should,at most,be no more than advisory.We are also concerned that the public will assume that“transparencymeans that there should be a“correct”sentence in any givencase.Sentencing is not an exact science. It involves the exercise by a judge of his independent discretionin regard to the circumstances of the individual case.
(
09-06
)
1
The Royal Society of Edinburgh (RSE),Scotland’sNationalAcademy,welcomes the opportunity tocomment on the
Criminal Justice and Licensing (Scotland) Bill 
(hereinafter referred to as“the Bill”).This paper is concerned with the provisions of the Billin regard to the purposes and principles of sentencingand the Scottish Sentencing Council. In preparingthis paper the RSE has drawn on relevant parts of its response in November 2008 to the ScottishGovernment’s consultation paper,
Sentencing Guidelines and a Scottish Sentencing Council 
(hereinafter referred to as“the consultation paper”)which foreshadowed these provisions.We have takenaccount of the extent to which the proposals in theconsultation paper have been modified. We would bepleased to discuss the issues raised in this response.
 
Purposes and Principles of Sentencing(sections 1 and 2)
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.
3
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.
4
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)
5
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)).
6
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.
6.1
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.
6.2
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)).
6.3
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).
6.4
Of the total membership of the Sentencing Councilthe judiciary members (including the chairingmember) are in the minority (five out of twelve).
2
 Advice Paper 
(
09-06
)
 
36.5
Among the objectives of the Sentencing Council areto“promote consistency in sentencing practice”and to“promote greater awareness and understandingof sentencing policy and practice”(section 4(a) and(c)). In this connection we note that the PolicyMemorandum states that the policy objectives of theproposals are:“To help ensure greater consistency,fairness andtransparency in sentencing and thereby increase publicconfidence in the integrity of the Scottish criminal justice system”.
7
The following are our comments on these proposals,which we set out by reference to the numberedsub-paragraphs above (6.1.– 6.5.):
7.1
We consider that the purpose of the SentencingCouncil is open to grave objection on constitutionalgrounds. Sentencing policy is,and should remain,amatter for the Parliament on the one hand and theAppeal Court on the other,following,we may say,a public hearing. It is fundamentally wrong thatsentencing policy should be determined by aSentencing Council,for which it appears that theexecutive have disproportionate influence on theprocedure for appointment of members (Seeparagraphs 1 and 2 of Schedule 1). It is also aconstitutional principle that the interpretationof legislation is a matter for the judiciary andnot the executive. It would be fundamentallywrong for the proposed Sentencing Council tolay down guidelines as to how statutory rulesshould be interpreted. That is pre-eminently amatter for theAppeal Court.
7.1.1
We would add that the Policy Memorandumstates:“The provisions create a Scottish SentencingCouncil to provide a new sentencing guidelinesregime for Scotland. This proposal originatedin recommendations by the judicially-ledSentencing Commission,which examined theissue of consistency in sentencing”.However,examination of the Report
1
of theSentencing Commission shows that it recommendedin favour of a sentencing advisory body and against asentencing guidelines council (paragraphs 9.14 et seq).Neither the Policy Memorandum nor theconsultation paper contains an acknowledgementof this fact,let alone any justification for the decisionthat there should instead be a Sentencing Council.
7.2
It would be unconstitutional and wholly inappropriatefor the executive to have any influence on theformulation of sentencing guidelines.The Parliamentcan pass laws which the courts must then follow andapply,but Ministers,the executive arm of theGovernment,have no right to tell the courts what todo in individual cases,and must not be seen to bedoing so. It also has long been recognised in Scotlandthat the LordAdvocate and the prosecution servicehave no role in the determining of sentence. It wouldbe wholly inappropriate and unconstitutional for theScottish Ministers or the LordAdvocate to be seen tobe influencing the way in which sentences areimposed.
7.3
It is wrong that in reaching its decisions any courtshould be subject to the determinations of a lay bodysuch as the Sentencing Council. This would be a grossderogation from the independence of the judiciary andentirely unwarranted. Only recently the Parliamentenacted a statutory commitment to judicialindependence in section 1 of the Judiciary and Courts(Scotland)Act 2008
2
. It is nothing to the point that,asstated in section 7(2),it would be possible for a courtto depart from a guideline in the circumstances of aparticular case,since what is objectionable is that thecourt would have to justify departure from a guidelinelaid down by a body which was not made up,as to itsmajority,by judges. It would also be inappropriate for the Sentencing Council in advance to circumscribethe circumstances in which departure would bepermitted (section 5(3)(d)). To do so would be tointerfere with judicial independence. If there are to besentencing guidelines,it should be for theAppealCourt ultimately to decide whether or not departureis justified.
7.3.1
While section 9 enables theAppeal Court torequest the Sentencing Council to review itsguidelines,this provision is in any eventunsatisfactory. First,theAppeal Court cannotmake such a request when it is refusing anappeal,and so is not passing another sentence.Secondly,it appears that if,after reviewingguidelines,the Sentencing Council determinesthat they should remain unchanged,therewould be an impasse,with the SentencingCouncil having the last word.
7.3.2
We should add that the proposals in regard tothe Sentencing Council make no reference totheAppeal Court’s own power to issueguideline judgments under section 118(7)and 189(7) of the Criminal Procedure(Scotland)Act 1995. In particular they donot address the potential conflict between themand the guidelines of the Sentencing Council.
 Advice Paper 
(
09-06
)
1
The Scope to Improve Consistency in Sentencing,The Sentencing Commission for Scotland,2006
2
Received Royal Assent on 29 October 2008

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