Community sentence for rape of a 13 year old

It is a good job that isn't the process in Scotland then.

As I explained earlier, the Sentencing Council for Scotland cannot approve its own sentencing guidelines. Its guidelines must be scrutinised by the High Court, which can approve (in whole or in part), reject (in whole or in part) or amend the proposals. The Sheriff Appeal Court can also require the Sentencing Council to review the guidelines and, if they do, the Sentencing Council must review the guidelines in the light of the Appeal Court's reasons.

In England & Wales, on the other hand, the Sentencing Council does indeed approve its own guidelines without scrutiny. For adult sentencing, the purposes are set by legislation. For youth sentencing, the Sentencing Council sets its own purposes. So what you have actually described is the process in England & Wales for setting sentencing guidelines for young offenders under 18, not the process for Scotland.

Also, judges have greater freedom to ignore the sentencing guidelines in Scotland. In England & Wales, judges are required to follow the sentencing guidelines unless they are satisfied that it would be contrary to the interests of justice. In Scotland, judges can step outside the guidelines for any reason provided they state their reasons.

And no, there is nothing dodgy legally here. If this is the process set out by legislation (which it is), it cannot be dodgy legally unless it breaches the EHRC (which it doesn't). You may think it is inappropriate, but it is clearly perfectly legal.

JFC what is the Scotgov doing? I sometimes feel they are deliberately making the most awful laws possible to force WM to intervene so they can claim they're being oppressed.

That is completely correct. It is the age at time of offending which determines the sentencing regime.

Are you sure? Everything else I've read says sentencing was here (and is in general) based on age at time of offence.

What matters is his age at the time of sentencing, not at the time of the offence. In England & Wales he would not be treated as a young offender and would definitely be going to prison.

Thanks @prh47bridge . Though as this rapist was 17 I guess not directly relevant in this case - just means similar awfulness could apply to a wider range of cases.

Of course, extending the bracket to 25 years has a useful effect.

Most crime is committed by those under 25.

If you change your sentencing guidelines (without scrutiny) and have no purposes or set them yourself (no scrutiny) and then approve all those changes as guidance, (no scrutiny) then you've changed the law in its scope and application without ever having to subject yourself to some democratic accountability.

In some ways, quite a lot worse than what happened with gender recognition in Scotland. But in another way, it it is the same. Change the principles and guidance first, and then change the primary legislation.

That is extremely dodgy legally.

Have a care Scots. Westminster has no say over crime in Scotland except in a few areas. But this is different, substantial policy and I bet it's not the only case either.

who the hell was the Judge on this, they need outing as well

The Sentencing Council for Scotland decided on the rules for sentencing young people convicted of crimes. They broadly followed the rules in England & Wales.

The Sentencing Council decided that these rules should apply to offenders aged under 25, as opposed to under 18 in England & Wales. The Scottish Government encouraged them to make that decision despite 70% of those responding to the consultation opposing this change. So who is in the category was set by the independent Sentencing Council, but the Scottish government encouraged them to make this decision.

Eh?? Why exactly do you think the judge ruled as he did then?

Isn't there something troubling that the age of consent is 16 but you're apparently expected to not be held to understand consent in sex until after the age of 25? Something is wrong.

@prh47bridge I don't entirely follow the role of govt as opposed to council here. Are you saying the independent council decided rules for 'young offenders' but that who is on that category is set by govt (or Scottish parliament)?

Even if it is true that prison wouldn’t help him, I don’t see how the community work in itself will rehabilitate him from being a person who thought it was ok to rape a child.

Why is the demarcation line for a rapist being culpable 25, when 16 is the age of consent, and 18 the age for becoming an adult? What about some consistency? This is all very strange.

Think how many under-25s might rape if they thought they could get away with it. There are enough of them already. This is a rapist’s charter.

Yes the legal structure is interesting but what it does demonstrate is that there is clearer, more rigorous process in England and Wales to make legislation and regulate the public bodies who make effective guidance on the application of the law.

That seems to be different in Scotland, and there may be some particular reason why, but in accountability and scrutiny terms it seems a poorer outcome. Judges may have a lot of knowledge and understanding of the relevant legal principles, and setting an actual sentence is certainly their job, but the lack of purpose as defined in primary law, and presumably also a lack of harm test in the same way, all of which are essential reminders that judges must consider certain elements in setting sentences, is worrisome.

Tony Benn had a good test about power; who has it, why do you have it and how do we get rid of you?

If Dominic Raab decides next week to change the purpose of sentencing via primary legislation then he will be subject to scrutiny, a vote, and finally ordinary voters. In Scotland, I don't know! A Independent Council decides and then... what?

Legislation can be pushed through relatively quickly in Scotland as they don't have a House of Lords and there are fewer stages for legislation to go through. But it isn't instant.

Youth justice is a mixture. The SNP have raised the age of criminal responsibility to 12 in Scotland (it is 10 in England & Wales).

In England & Wales the sentencing guidelines for children and young people apply to offenders under the age of 18 in line with legislation. Note that the purposes of sentencing in the Sentencing Act only apply to offenders aged over 18. Below that age, the Sentencing Council can determine the purposes of sentencing. And there is nothing in legislation that prevents the Sentencing Council adding the age of the offender as a factor to be taken into account when sentencing or, indeed, setting different starting points and sentencing ranges depending on the age of the offender, although they have not done so.

In Scotland, the legislation is less clear. Some criminal legislation refers to young people as being under 21, but not in a way that makes that binding generally. The Scottish government wanted the Sentencing Council to regard offenders under 25 as young people, which is what they have done.

I think we have to disagree! The changes you describe would take a long time. Meanwhile this body has great power and it's accountability limited until the Scottish Parliament decides to act.

I assume also the same applies to youth justice. That is another matter of policy which looks different between E&W and Scotland.

I still don't agree.

If the Scottish parliament isn't happy with the purposes set by the Sentencing Council, they can pass legislation to change the purposes (which can happen a lot faster than a change of primary legislation by Westminster).

As things stand, the Scottish parliament has chosen to delegate setting the purposes to the Sentencing Council, but they can take it back any time they want. So ultimately, the Scottish government is responsible, and they are accountable to the public.

@prh47bridge - thank you. Do see now why my concern might be that the Scottish Sentencing Council has much greater power to change sentencing outcomes than in England and Wales, where, properly in my view, an accountable politician who can be voted out, can arrange for a change in the law. Not a judge, civil servant or other bureaucrat.

These things are different in terms of accountability to the public. That is a problem for Scotland.

We have moved away from the idea that victims deserve justice. That would be a "backwards" approach apparently.

What is even more shocking for me is that the sex attacks took place in 2018 and that it has taken almost 5 years for the case to get to the courts.

That poor young lady and her family!

My apologies. That was wrong.

The relevant legislation gives the Sentencing Council for Scotland the power to determine the purposes of sentencing. They did so in 2018, broadly following the purposes that used to be in the Criminal Justice Act 2003 and which are now in the Sentencing Act 2020.

@prh47bridge - I'm a little skeptical. Which section of the Criminal Justice Act 2003 sets out the purposes for Scotland?

The criminal justice system in Scotland is devolved. If a youth offender is up to 21 in E&W, and 25 in Scotland, that's a very big difference in scope and application.

Link to 'sentencing for young people' also on that page/link above. It seems fairly brief and doesn't give much solid info on how they've arrived at these guidelines.

'Rehabilitation is a primary consideration when sentencing a young person. When selecting a sentence the court should, where appropriate, seek to rehabilitate the young person and to reduce the risk of reoffending. The character of a young person is not as fixed as the character of an older person, and a young person who has committed a crime may have greater potential to change.'

The fact that the judge in this case has, I believe, got it horrendously wrong does not mean that the systems differ radically.

The systems are not looking for different outcomes. The Criminal Justice Act 2003 sets out the purposes of sentencing for Scotland. They are essentially the same as those set out for England & Wales in the Sentencing Act 2020. As with the Sentencing Act, the legislation does not specify the weight to be given to the various factors.

To say yet again, there is no "person" that decides youth offending policy. The Scottish government enacts legislation. The Sentencing Council (whose members are appointed by the Lord Justice General in consultation with the Scottish Ministers) determines how the legislation is applied.

'In its latest business plan the Council announced that its focus will turn to offence guidelines and confirmed its intention to prepare a sentencing guideline on domestic abuse offences.
Work will continue on the development of guidelines for death by driving, the sexual offences of rape, indecent images of children, and sexual assault, as well as on sentence discounting. It is also planned to resume work on an environmental and wildlife offences guideline.'

https://www.scottishsentencingcouncil.org.uk/sentencing-guidelines/guidelines-in-development/