Scotland set for ‘new era of sentencing’, says Lord Carloway

One of Scotland’s most senior judges has insisted the imminent introduction of guidelines on sentencing will move the country into a “more civilized era”.

Delivering the annual Sacro lecture in Edinburgh, Lord Justice Clerk Lord Carloway said a Scottish Sentencing Council – which has yet to be established more than three years on from relevant legislation passing through parliament – would dilute any predisposition to retribution within the sentencing process.

The Criminal Justice and Licensing (Scotland) Bill, which received Royal Assent in August 2010, paved the way for a system of sentencing designed to be more consistent and transparent. The move stemmed from a recommendation by the Sentencing Commission for Scotland seven years ago, though came up against opposition from Scotland’s most senior judges in 2009 who warned the planned Council would undermine judicial independence.

Current constraints on government spending have delayed its formation, said Lord Carloway, though he told an audience of professionals from across the criminal and community justice landscape that once up-and-running the proposal would prove its worth.

He said: “As is not unusual when reforms to the law are being promoted, the idea of promulgating guidelines, even if they require court approval, has its critics; mostly those who, for reasons which escape me, prefer a more haphazard and inconsistent approach with no defined principles.

“I have little doubt that, once the Council is established, it will take Scotland into a new era of sentencing: one which will attempt to create a more principled approach and will define, upon the basis of concrete research, what we are trying to achieve and how it can be achieved.

“It will not eradicate crime but it will advance Scotland into a more civilized era where retribution, other than in relation to the most serious of crimes, will have a much smaller plate at the sentencing table.”

The Council’s aim is to promote consistency in sentencing practice, assist the development of policy in sentencing, and promote awareness of sentencing policy and practice. Lord Carloway is to chair the Council, which will also include four judicial office holders, three lawyers, a police representative, a victim expert, and single lay member.

Sentencing guidelines – to be approved by the court – will be prepared, taking into account sentencing levels, types of sentence suitable for types of offence or offender, and the circumstances in which guidelines may be departed from.

In a Q&A session following his address, Lord Carloway was asked whether the Council will examine the ‘punishment part’ of sentences – brought in following adoption of the European Convention on Human Rights (ECHR) – which sees the sentencing judge fix a minimum period to be served before parole can be considered in the case of life sentences.

He said: “Yes, hopefully the Sentencing Council will look at the question of punishment parts and particularly the fact that, as you say, they are continually increasing and they are increasing in response to either political or public pressures to increase sentences at the high end.

“The problem which the courts will face is the one which I have already alluded to, is that the courts have to sentence, to a degree, in accordance with public expectation and if the public expectation [is] in accordance with what I referred to as retributive ideas of what people should get – ‘just deserts’ – then progress will be extremely difficult.”

An additional problem has emerged regarding the Order for Lifelong Restriction (OLR), Lord Carloway added, in that their unanticipated use in relation to relatively minor offences could raise an issue of proportionality going forward.