bto solicitors - Corporate & Commercial Business Lawyers Glasgow Edinburgh Scotland

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Making sense of sentencing

28 December 2018

  • For more information:
  • T: 0141 221 8012

The uncertainty surrounding the outcome of a prosecution is usually the most stressful part of the process. As such, lawyers are inevitably asked by clients what the outcome is likely to be…

Clients facing prosecution want to know what is likely to happen to them if they are convicted. This can be a very difficult question to answer and lawyers are careful not to make an unrealistically optimistic forecast nor do they wish to be unduly pessimistic. We must draw upon our experience in order to make an informed and educated prediction.

In England and Wales, lawyers have had the benefit of the Sentencing Council of England and Wales since 2010. One of their primary functions is to develop sentencing guidelines. Their activity in this regard has been fairly relentless, publishing guidance on sentencing in all manner of cases since 2011. As such, lawyers south of the border will no doubt be far better placed to answer those difficult questions asked by clients as to the likely outcome.

In recent years, it has become commonplace for the Scottish courts and practitioners operating in health and safety, fatal road traffic and environmental prosecutions to make reference to the Sentencing Council Guidelines of England and Wales. The Scottish courts are not bound by these guidelines, but ordinarily consider them to be helpful. Often these cases are complex and so it would be hard to rationalise any sentence imposed without recourse to some sort of structured guidance.

Perhaps following in the footsteps of our English and Welsh counterparts, the Scottish Sentencing Council was established in 2015. Their aims are to promote consistency in sentencing, assist the development of sentencing policy and promote greater awareness and understanding of sentencing. In order to do this, they are responsible for preparing sentencing guidelines for the courts, publishing guideline judgments issued by the courts and publishing information about sentences handed down by the courts. This is a welcome development and one which is beginning to bear fruit.

The first guidelines of the Scottish Sentencing Council were approved by the High Court of Justiciary on 30 October 2018. These initial guidelines set out the general principles and purposes of sentencing in Scotland and apply to sentencing for all offences from 26 November 2018. The rationale for these initial guidelines being stated as: “Although some guidance on appropriate sentences in particular cases is available, in the form of court decisions, the fundamental principles and purposes of sentencing in Scotland have not been expressly defined in any single piece of legislation or court judgment.”

At present, the Scottish Sentencing Council are developing guidelines in relation to the sentencing process, sentencing of young people, death by driving, environmental and wildlife crime, sexual offences and sentence discounting. These further guidelines are likely to be welcomed by Scottish practitioners with open arms. They will certainly assist when making those tricky “informed and educated predictions”.

For more information, contact our Regulatory and Criminal Defence team T. 0141 221 8012


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  • 48 St. Vincent Street
  • Glasgow
  • G2 5HS
  • T:+44 (0)141 221 8012
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  • Edinburgh
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