Community sentence for rape of a 13 year old

[Shelefttheweb]

Wtf?

https://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-65164041

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.

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.

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.

@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.

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.

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.

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.

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.

'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.'

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.'

@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?

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.

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

This is how guidelines are developed.

'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/

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.

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.'

@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.

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.

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!

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

@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.

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.

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.

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.

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?