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Sentencing Guidelines Scotland

Every case depends upon its own facts and circumstances and the personalities in the court where your case will be heard. For an informed discussion and advice on what you may expect by way of sentence in your own case just call us on 0800 612 9597 or go online to www.roadtrafficlaw.com/ask_a_lawyer.htm

o There are no sentencing guidelines currently in existence in Scotland. In other jurisdictions like England the Magistrates are issued with guidance on sentencing.

o Sentencing is a matter for the judge at first instance, who will consider each case on its own merits.

o The judge’s discretion is tempered by statute – which may provide for particular sentencing options, and occasionally, mandatory sentences – and the decisions of the Appeal Court.

o Section 197 of the 1995 Act, headed, “Sentencing Guidelines”, provides: “Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under section 118(7) or section 189(7) of this Act”. Sections 118(7) and 189(7) empower the Appeal Court, when disposing both solemn and summary appeals, to pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case. The Appeal Court has apparently seldom used this power to issue “advisory judgments” on sentencing matters.

Why

o The sentencing system in Scotland has the advantage of being flexible and fair: each sentence will be tailored to the specific circumstances of the offence and the offender. The sentencing process is wholly undertaken by an independent judge who will have heard all the relevant evidence.

Developments

o Recent research has found that although there is little evidence of widespread inconsistency in sentencing in Scotland, there is nonetheless a general perception of inconsistency.

o Consistency in sentencing is seen as an essential part of fairness and justice: “like cases should be treated alike”. Consistent sentencing which is transparent and predictable is said to be important to maintain public confidence in the justice system. It also allows practitioners to provide better advice to their clients.

o The Scottish Government has produced a consultation paper, Sentencing Guidelines and a Scottish Sentencing Council: Consultation and Proposals (September 2008) in which the establishment of a statutory sentencing advisory body – a Scottish Sentencing Council (SSC) – is proposed. The SSC’s main function would be to prepare draft sentencing guidelines for approval by the Appeal Court. Consultation closes on 21 November 2008. This paper followed a report by The Sentencing Commission for Scotland, The Scope to Improve Consistency in Sentencing (2006), which had made similar recommendations.

The Position In England

General

o The Sentence Guidelines Council (SGC), advised by the Sentencing Advisory Panel, is responsible under the Criminal Justice Act 2003 for producing sentencing guidelines. Before the SGC was established, the Court of Appeal had responsibility for producing sentencing guidance.

o Guidelines are produced for particular offences and classes of offences as well as on overarching principles, and issues such as reduction in sentence for a plea of guilty.

Road Traffic Offences

o Most of the relevant SGC guidance on road traffic matters is contained in the current Magistrates’ Guidelines (also produced by the SGC), which has a section on motoring offences (pp 117-140).

o Each offence (or class of offence) has its own separate guideline which charts the reasoning process that magistrates should follow when sentencing as well as giving a suggested appropriate range of sentences depending on the circumstances of the particular offence.

o The guidelines are generally structured as follows:

1. Name of offence and statutory provision

2. Statement of statutory minimum or maximum; whether statute provides any mandatory sentence

3. Reasoning process to be followed

· Form preliminary view of the appropriate sentence

o Appropriate starting point

§ Circumstances of the offence – starting point – range

o Effect of aggravating/mitigating factors

§ Non-exhaustive lists of factors indicating higher or lower culpability

· Consider offender mitigation (circumstances of offender)

· Consider guilty plea reduction

· Consider ancillary orders

· Decide sentence and give reasons

The full version of the Guidelines is available at: http://www.sentencing-guidelines.gov.uk/docs/magistrates_court_sentencing_guidelines_update.pdf

Extracts from Magistrates’ Guidelines – Road Traffic Offences

The following tables are extracted from the current Guidelines and show starting points and ranges for common road traffic offences according to the circumstances of the offence. They do not reproduce the guideline for any particular offence in full. Reference is made to bands of fines: the approach to financial penalties is dealt with in detail in the Guidelines at pp 147 et seq.

Excess alcohol (drive/attempt to drive) (s 5(1)(a) RTA 1988)

Dangerous driving (s 2 RTA 1988)

Speeding (s 89(10) RTRA 1984)