THE expectations are high for the new Scottish Sentencing Council. Its chair Lord Carloway says he expects the body to take Scotland into a new era of more principled and more consistent sentencing. And one of its lay members, Sue Moody, says the council is good news for the victims of crime and will help to demystify sentencing for the public.
The council is certainly a good idea in principle, although it may be that most of its job ends up being explaining the facts on sentencing. The Scottish Government established the council because it said there was a perception that sentences are inconsistent, but we know that perception and fact are always not the same and that the public can see sentencing as more inconsistent and more lenient than it really is.
Where there are inconsistencies, the council should work to smooth them out where possible, although judicial independence is an important and valued principle and should be protected and judges must remain free to take into account particular facts of the case that might justify a more severe, or more lenient sentence – it could be the accused's record for example or an aggravating factor such as racism or homophobia.
The proposed set-up for the council should help to protect this principle of judicial independence. The plan now is that it will work on preparing guidelines on sentencing and once they have been agreed, all Scottish courts will have to take them into account. But, importantly, a judge will retain the right to deviate from the guidelines because of the circumstances of a case as long as he or she explains why.
This is a fair arrangement and should help maintain a balance between consistency and flexibility. But the council should also help promote another vital ingredient of a good and strong justice system: openness. If judges do deviate from the national guidelines, they will have to explain why, and as they do , that will help build public confidence or help identify where the guidelines need to be adjusted further.
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