Feature: Putting them away

John Forsyth discusses the issues surrounding the remit of the Scottish Sentencing Council, which is to be constituted later this year.

The Scottish Sentencing Council is due to be formally constituted in October. As a new feature on the criminal justice landscape, the council was created as part of the Criminal Justice and Licensing (Scotland) Act 2010. Legislatively speaking, that was hard on the heels of the equivalent body south of the border, the Sentencing Council of England and Wales. Their council was created in 2009 and began work in 2010.

For reasons that are not obvious the Scottish Sentencing Council has been in suspended animation for the best part of five years. Nevertheless it has been recently confirmed that all systems are now go. The council will be chaired by the Lord Justice Clerk, Lord Carloway. According to the statute, he will be joined around the Sentencing Council table by:

Five judges viz a judge of the outer house of the Court of Session or the High Court of Justiciary; one sheriff (not including a sheriff principal); two persons who hold the office of stipendiary magistrate or justice of the peace; and one other judicial member (including a sheriff principal). By my reckoning that means there will be a sheriff principal.

Three lawyers viz one prosecutor; one practising advocate; one practising solicitor.

Three lay members viz one police officer; one person with knowledge of the issues faced by victims of crime; and one other person not qualified for appointment as a judicial or legal member.

The Lord Justice General, Lord Gill, will be responsible for appointing the judicial and legal members of the council. Police Scotland and Victim Support will nominate their members. It looks like one place, the ‘one other person’, will be open to applicants through the public appointments channels.

It seems beyond challenge that the establishment of the council is a good thing. Its statutory objectives are to promote consistency in sentencing practice; assist the development of policy in relation to sentencing; and promote greater awareness and understanding of sentencing policy and practice. Who could be against any of those?

Delivering the Howard League Scotland lecture at Edinburgh University last October, Lord Carloway predicted that the result of the imminent council’s labours could be to render obsolete existing sentencing jurisprudence ‘such as it is’ – four of the most chilling words I’ve heard from a senior judge. And anything the council can do by way of explanation will be welcome if it helps dissipate the febrile atmosphere around sentencing in which it has become practice for news media to invite victims of crime or their families to explain on the steps of the court how outraged they are at the inadequacy of the sentence that has just been handed down in their specific case.

The direct victims and their families are entitled to feel what they do. I have less sympathy for the opportunism of other campaigns in exploiting the victims and monstering convicted persons for their own ends. In his recent book, ‘So You’ve Been Publicly Shamed’, Jon Ronson reminds us that very few of us are evil 24 hours a day, every day, but treating us as if we are and as if we are therefore beyond humanity rarely leads to a positive outcome.

Interestingly, when the legislation setting up the Scottish Sentencing Council was first passed in 2010, I interviewed the chairman of the English Council, a then little-known judge called Lord Justice Leveson, for a steer on what to expect. He drew my attention to an interactive exercise called ‘You be the judge’ which you can still find at http://ybtj.justice.gov.uk. Lord Justice Leveson said: ‘We know that, if asked at a general level, public confidence about sentencing is low and the general assumption is that it is too lenient. However we have taken “You be the Judge” to court open days in different parts of the country. Members of the public can also try it online. It has been remarkable that when people get a chance to view the details of a prosecution and take all the facts into account the sentence that they suggest generally undershoots what the judge on the bench actually decided. I think we all have a responsibility to explain more about what we do and why we do it’.

There are differences between the councils on either side of the border. The fundamental difference of principle is that the English Sentencing Council does its research and analysis, thinks through the resource implications and publishes its guidelines. It has been busy. Its 2013-14 corporate report shows guidelines on six distinct areas of law completed or under way – including, last month, its second report in three years on sentencing related to dangerous dogs after the legislators defined new offences.

There will be an intermediary stage in Scotland. The Scottish Sentencing Council will make its recommendations to the Lord Justice General who will accept them all, or in part or not at all. The E&W corporate report throws up another difference in practice if not in principle. Its budget is just over £1.5m. The Scottish Government’s financial memorandum to the Criminal Justice and Licensing (Scotland) Bill 2010 in which the Scottish Sentencing Council is founded estimated the set-up costs for the Scottish Sentencing Council at £450,000 and ongoing costs at £1.1m.

The indecorously described ‘headcount’ in England and Wales stands at 17.7 full time equivalent posts. I was advised that staffing and administrative support for the Scottish Council would be supplied by the Scottish Court Service. Given that the Scottish Council is expected to be up by October and active by November, I asked the Scottish Court Service what staffing it had budgeted to provide but was advised this was a matter for the Sentencing Council and that staffing is yet to be settled. As is the per diem rate for members. No doubt that will all be settled in due course.

The eternal optimist in me has hopes that the council and its urging of consistency, if not uniformity, will have a positive contribution to make. The division of labour in recent years seems to have established that Lord Gill as Lord Justice General and Lord President of the Court of Session has been sorting out the organisation of the courts with the aim of fitting them for life in the 21st century. Whether it was intended this way or not, Lord Carloway has been addressing issues around what happens within the courts. Proposals for the abolition of corroboration (and news from the expert committee set up to review that can’t be far away) and admissibility of new forms of evidence in criminal cases bear his stamp. I think it is fair to say that both are impatient with the concept of ‘established practice’ as a guide to future justice.

Lord Carloway trailed the view he will take from the chair of the Sentencing Council in that lecture to Howard League Scotland. The full title was, ‘The Purpose of Sentencing – From Beccaria to the OLR and Beyond’. The ‘Beccaria’ of his title was an Italian whose ‘Treatise on Crimes and Punishment’, published in 1764, was pioneering in arguing against the use of physical punishment and torture and in favour of punishments that would ‘make the strongest and most lasting impressions on the minds of others, with the least torment to the body of the criminal’.

Lord Carloway indicated that the Scottish Sentencing Council would be less definitive than its southern neighbour – less intent on drawing up a grid that could be superimposed on each case before any judge. He concluded: ‘Perhaps the best thing that could happen is that a new Beccaria will emerge, who could guide us all forward towards the promised land. That country may be one in which, whilst the offender who is assessed as a continuing danger to the public should be subject to some relatively restrictive regime of incarceration and/or intense supervision in the community, all others should be paying back to, and learning in, the community and not removed from it and put behind the walls and barbed wire that future generations may regard, as we now do the practices prevalent in Beccaria’s day, as barbaric’.

I wish the Scottish Sentencing Council the best of luck when ‘death by careless driving’ reaches the top of its to-do-list.