01 December 2021

A new approach to sentencing? Not Quite

In September 2021, the Scottish Sentencing Council introduced guidelines in respect of criminal offences in Scotland. For many years, our courts have supplemented Scottish sentencing case law with guidance issued by the Sentencing Council for England and Wales for UK-wide offences such as those under the Road Traffic Act 1988 and the Health and Safety at Work etc Act 1974. Whilst a codified set of rules can be useful to inform ranges of sentencing, the application of guidance devised for a different jurisdiction – with different sentencing options available – has never been straightforward.

In 2016, the introduction of the Definitive Guideline for Heath and Safety Offences, Corporate Manslaughter and Food Safety and Hygiene Offences by the Sentencing Council for England and Wales upped the ante in sentencing for breaches of health and safety legislation. The Definitive Guideline set out a formulaic approach to sentencing that was ultimately linked to company turnover. Sentences imposed for non-fatal health and safety offences began to reach the millions and became front page news.

Very shortly after the introduction of the Definitive Guideline in England and Wales, the Scottish Court of Criminal Appeal confirmed that the Definitive Guideline could be used in Scottish health and safety cases as a ‘cross-check’ after the application of existing sentencing precedent. Fines in Scottish health and safety cases began to climb.

Scottish Sentencing Guidelines

The newly published Scottish Guidelines introduce an eight-stage process for decisionmakers to follow to ensure fairness and proportionality when sentencing all criminal offences, including breaches of health and safety legislation. The stages are:

1. Assessing the seriousness of the offence
2. Selecting the sentencing range
3. Identifying aggravating and mitigating factors
4. Determine the headline sentence
5. Timing of guilty plea
6. Consider time spent in custody
7. Consider ancillary orders
8. Impose sentence and give reason

Although this may appear to be hot off the press, the considerations listed simply codify the principles of sentencing that have long been established by case law and confirmed in appeal cases.

It remains to be seen how the Scottish Courts will apply the Scottish Guideline in the context of health and safety offences, but the ‘new’ process very closely follows the path of the Definitive Guidance and case law; the Scottish Guidelines start with an assessment of the seriousness of the offence, moving on through an assessment of aggravating and mitigating factors - so far, so familiar.

Unfortunately, those who had hoped that the Scottish guidelines would diverge from the approach in England and Wales and lead to lower fines in health and safety offences will be sorely disappointed.

Lindsay MacNeil, Associate: lmn@bto.co.uk / 0141 221 8012