Community sentence for rape of a 13 year old

https://www.scottishsentencingcouncil.org.uk/sentencing-guidelines/how-sentencing-guidelines-are-developed/

This is how guidelines are developed.

A judge in Scotland will consider the harm inflicted. The fact that, in the absence of Scottish sentencing guidelines, the Scottish courts tend to follow the English guidelines, shows that the two systems do not have wildly different ideas.

@prh47bridge - a judge in England has to consider all those purposes relating to the facts of the case. Now in Scotland, there are no such purposes, and the definition of youth offender, and application of guidelines appears to differ radically. These systems are looking for a different outcome, and in a case of rape, that's lead to this outcome.

Who is the person who decides youth offending policy, how was that done, and can the Scottish people get rid of them?

Ach. Embedded bitly link.

Here's the text I was trying to quote:

'The Council is an advisory body that is independent of government or political parties. It provides sentencing guidelines for the courts based upon evidence, engagement and consultation, including public consultation. See our web page for consultations you can take part in. Before they can take effect, the Council’s guidelines must be approved by Scotland’s supreme criminal court, the High Court of Justiciary, which is also independent of government.'

'The Council is an advisory body that is independent of government or political parties. It provides sentencing guidelines for the courts based upon evidence, engagement and consultation, including public consultation. See our web page for consultations you can take part in. Before they can take effect, the Council’s guidelines must be approved by Scotland’s supreme criminal court, the High Court of Justiciary, which is also independent of government.'

No, it is not correct that punishment is not required. The guidelines are clear that the full range of sentencing options remains open to the court. However, a custodial sentence should only be used where no other sentence is appropriate. This is broadly the same as in England & Wales, apart from the age limit to be considered a young offender.

There is no "person" that writes the guidelines. The guidelines are produced by the Sentencing Council for Scotland. By the way, I am not in Scotland. And, whilst any sentence that is within the legislation is lawful (including this one, even if there were no relevant sentencing guidelines), I suspect this will be overturned on appeal as unduly lenient.

https://www.mygov.scot/organisations/scottish-sentencing-council

https://www.scottishsentencingcouncil.org.uk/about-sentencing/

I know zip about any of the processes, but I presume the info would be in the links above.

Btw it is repellent to me because a judge in England and Wales should consider the harm inflicted as a matter of primary legislation. If that doesn't happen in Scotland then these are two criminal justice systems which have wildly different ideas.

There is no radical change.

To repeat, in England & Wales, the Sentencing Council's guideline for young offenders and children says sentencing should focus on rehabilitation where possible. That is similar to what has happened in Scotland. It is not a radical change. It does not require primary legislation.

To say yet again, primary legislation sets out the maximum and, in some cases, minimum sentences. It may also set out some principles to be considered in sentencing but, contrary to your post, the Sentencing Act 2020 (which does not apply in Scotland) does NOT say that rehabilitation and punishment must be given equal weight. It lists them as part of the purpose of sentencing along with a number of other factors, but is completely silent on the relative weight to be given to these factors. It is therefore open to the Sentencing Council to decide on the relative weight, as indeed they do.

The Sentencing Council determines the starting point for sentencing, the range within which most sentences will fall and the factors to be taken into account. That is the same in Scotland as in England & Wales.

There is no "someone else". There is only the Sentencing Council exercising its statutory powers within the framework set out by legislation, which, as I have pointed out, is broadly the same in Scotland as it is in England & Wales.

In this case, the SNP were determined that young offenders should include anyone aged under 25, so this was pushed through despite widespread opposition in the consultation.

@prh47bridge - but the issue in this case is the purpose of sentencing. As I understand it, for young offenders in Scotland, punishment is not required? That would mean that you could lawfully pass a sentence like this if a judge considered that rehabilitation should be the dominant purpose.

So I'm not saying that the judge was wrong - what I am saying is that if Scotland doesn't have its own statutory purposes of sentencing, that is the fundamental why a judge can pass a sentence, then the guidelines and who writes them becomes more significant; or indeed the person who decides who is a youth offender and how old they are. Who is that person and how is that done?

The point you make about maximum and minimum sentences is different. That is common to both England and Wales and Scotland.

But if your criminal Justice policy is different and who is youth offender changes, then you can have an outcome like this. And it is lawful.

What ‘community’ is going to want this person to ‘serve’ them, and in what context? I hope it’s not going to involve proximity to women and girls, since he has just been given the green light to have another go.

I have told you nothing of the kind.

Sentencing law cannot be adjusted in Scotland without a primary legislative change any more than it can be in England & Wales. Primary legislation sets the maximum and, in some cases, the minimum sentences for an offence. The Sentencing Council sets the starting point and range for actual sentences and the factors to be considered.

The fact that the sentencing guidelines have to be approved by the High Court in Scotland (which has the power to modify the proposed guidelines and reject them, either in whole or in part) and there is also provision in Scotland for the Sheriff Appeal Courts to require the Council to review its guidelines means there is more scrutiny than in England & Wales, where the Sentencing Council can publish final guidelines after consultation without needing any further approval.

You haven't answered my question about the Scottish process @prh47bridge. I take your point re on and working for.

My point is, to make this kind of change in England and Wales would be radical, and would need primary legislative change. For Scotland, it seems there are no statutory purposes of sentencing, which means that someone else decides what they are and the scope of the application.

Who is this person? How do they have this power? That's what I want to get to. If it's the judiciary and some civil servants writing guidelines or the scope of sentencing law, then that is extremely unaccountable in a way that cannot happen in England and Wales.

So basically rape has been formally legalised (rather than the informal arrangement we all suspected)

There are many civil servants who work for the Sentencing Council. There are no civil servants on the Sentencing Council.

The Sentencing Council for England & Wales has 14 members. They are the Sentencing Council. They meet monthly and determine the sentencing guidelines. They are supported by civil servants in the Office of the Sentencing Council.

The Sentencing Council for Scotland has 12 members. They are the Sentencing Council. They meet quarterly and determine the sentencing guidelines. There are a number of advisory committees covering specific areas of law feeding into the Council. There are no civil servants on any of these committees. The Council are supported by civil servants.

You may well have met civil servants who work for the Sentencing Council in the Office of the Sentencing Council (or its equivalent in Scotland). You haven't met any who are on the Sentencing Council. There aren't any. The civil servants do not set the guidelines. The members of the Sentencing Council do that.

The structure is clear in England and Wales.

The Sentencing Act 2020 sets the purposes of sentencing. That is a matter of policy.

The Sentencing Council, by dint of the powers it's given by Parliament, then writes guidelines for the judiciary. This is done by the members of the Council who include civil servants and the judiciary.

They cannot change the primary effect or intention of primary legislation by their guidelines or the policy. They need publicly consult.

So they cannot say, this guideline or it's application, should omit or otherwise adjust the purpose of legislation.

What you have just told me is alarming. It suggests that in Scotland, you can adjust sentencing law without a primary legislative change. A court may approve a guideline but without a decision on policy, a primary legislative change to reflect that, it looks like a criminal justice system administered a policy change, which would change the application of the law, without any serious scrutiny. A court is not a form of scrutiny. It presumably can only ratify what is in front of it.

Also, in terms of primary legislation, whilst the Sentencing Act sets out the priorities for sentencing, that only applies in England & Wales.

@prh47bridge - there are many civil servants in the Sentencing Council. I've met them.

As per my previous posts, I don't agree that the Sentencing Council for Scotland has gone any further than the Sentencing Council for England & Wales. Also, as per my previous posts, there are no civil servants involved in either Sentencing Council (unless you count the Director of Public Prosecutions) and it isn't just judges.

The Sentencing Council for Scotland derives its powers from primary legislation. It consults on its guidelines. Its guidelines have to be approved by the High Court.

So yes, they did know one another and probably arranged to meet

Not necessarily. The park could have been on her way to/from school or a club she attended. She could have been blackmailed into meeting him if he had compromising photos of her. Their families might know each other and the meetings might have been part of wider gatherings. They might be related. He could have been babysitting her.

One of the acts he was accused of (unclear if he was convicted of it) was having sex with her whilst she slept and some of the other assaults he was accused of were reported to have happened at an address in the nearby town of Penicuik.

@SNWannabe have you heard of coercion? I understand you are looking for explanations to make the sentence sensible, but I don't think choosing to meet him in the park is one.

He clearly found ways to access more than one girl on more than one occasion. He threatened her. The fact he got her to the park demonstrates rather than undermines his predatory behaviour.

It may be extraordinary but it will be lawful if the judge followed the guidelines set down by the Scottish Sentencing Council. Judge excused.

The policy behind the guideline, the definition of youth offending and how that was done in Scotland looks very murky.

I wonder how the Crown Office reviews sentences. That is function given to judges for human rights reasons, so they can't just adjust it by themselves.

Or maybe they decide they can in which case Scotland has even bigger problems in criminal justice and compatibility with the ECHR.

Another report on BBC Scotland:

'The KC said: "It is an extraordinary sentence.
"I have been working in the high court for around 20 years and I have never seen anybody avoid prison for rape until yesterday."'

https://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-65173054

I think the Crown Office are full of it. Do they have a ULS for Scotland? If they do, it would have been easy to say so.

Scotlands a fucked up place to live no doubt. God.