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ScrollingLeaves · 04/04/2023 13:32

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.

Seriouslythoughwhatthehell · 04/04/2023 13:57

prh47bridge · 04/04/2023 11:22

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.

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@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)?

TurnLeftAtTheBakery · 04/04/2023 14:15

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.

HairyKitty · 04/04/2023 14:20

Greenfairydust · 04/04/2023 08:26

''HairyKitty · Today 08:21
The judge could have decided that in this particular defendants case, 4 years is a lifetime ago, he isn’t who he was in any way, and imprisoning him would have propelled him back to a life of further crime. Hence the non custodial sentence which is now allowed due to his age.''

FFS don't post nonsense like this.

For the girl it will never be a ''lifetime ago''. She will never forget what was done to her and the fact that she was then let down by the justice system.

Also this gives this man the green light to do it again as there were no consequences for his crime.

That judge has basically said if you are a man under 25 it is perfectly fine to assault and rape minors.

It is truly, truly appalling.

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

prh47bridge · 04/04/2023 15:07

Seriouslythoughwhatthehell · 04/04/2023 13:57

@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)?

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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.

tootiredtobother · 04/04/2023 15:19

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

LexMitior · 04/04/2023 15:28

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.

Seriouslythoughwhatthehell · 04/04/2023 16:26

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.

prh47bridge · 04/04/2023 16:50

Seriouslythoughwhatthehell · 04/04/2023 16:26

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.

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.

Seriouslythoughwhatthehell · 04/04/2023 17:13

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

LexMitior · 04/04/2023 17:18

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

ArabellaScott · 04/04/2023 17:19

prh47bridge · 04/04/2023 15:07

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.

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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.

prh47bridge · 04/04/2023 17:20

LexMitior · 04/04/2023 15:28

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.

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.

prh47bridge · 04/04/2023 17:23

ArabellaScott · 04/04/2023 17:19

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.

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In all honesty, I don't think either the Scottish government or the Sentencing Council for Scotland intended this outcome. I think this is exactly the kind of crime where they expected the judge to conclude that no other sentence apart from prison was appropriate.

LexMitior · 04/04/2023 17:23

I'm not sure I rate your expertise on this because someone familiar with sentencing law would know that sentencing in Scotland did not have purposes, which you claimed it did in an Act of Parliament, and yet you also seem not to know that sentencing is done on the age of the offender.

Perhaps you'd like to explain the functional difference between a departure in Scotland and one in England and Wales on sentencing guidelines. How is it different?

Original poster
Shelefttheweb · 04/04/2023 17:29

prh47bridge · 04/04/2023 17:23

In all honesty, I don't think either the Scottish government or the Sentencing Council for Scotland intended this outcome. I think this is exactly the kind of crime where they expected the judge to conclude that no other sentence apart from prison was appropriate.

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The Scottish Government are terrible are legislating and ignore attempts to point out ‘unexpected’ consequences. I hold them responsible for this.

OP posts:
Greenfairydust · 04/04/2023 20:21

This reply has been deleted

Message deleted by MNHQ. Here's a link to our Talk Guidelines.

HairyKitty · 04/04/2023 20:23

@Greenfairydust i think you should learn how to read 🙄

prh47bridge · 04/04/2023 21:04

LexMitior · 04/04/2023 17:23

I'm not sure I rate your expertise on this because someone familiar with sentencing law would know that sentencing in Scotland did not have purposes, which you claimed it did in an Act of Parliament, and yet you also seem not to know that sentencing is done on the age of the offender.

Perhaps you'd like to explain the functional difference between a departure in Scotland and one in England and Wales on sentencing guidelines. How is it different?

It does have purposes set by the Sentencing Council based on the Act of Parliament I quoted. I admitted that I had misunderstood that the relevant clauses were actually included in Scottish law rather than the Sentencing Council using them as the basis for the purposes of sentencing in Scotland. As I said earlier, I am not from Scotland.

I have no idea what you mean when you say that sentencing is done on the age of the offender. In England & Wales, the sentencing guidelines apply equally to all offenders over the age of 18. There are a number of offences where legislation sets a reduced sentence if the offender is under 21. Apart from those, you don't get a lighter sentence simply for being younger. You do get a lighter sentence if you have no previous relevant convictions and, of course, that is more likely to apply to a younger offender. And there are some offences where the age differential between the offender and the victim is taken into account. If you believe there are sentencing guidelines that specifically take age into account other than as required by legislation, perhaps you can point them out.

As for the functional difference, it isn't difficult. A judge in England &Wales must follow the sentencing guidelines. They can only impose a sentence below the minimum specified in the guidelines if they can show that the minimum sentence would be contrary to the interests of justice in this particular case. Absent such reasons, they must follow the guidelines. A judge in Scotland is only required to "have regard" to the sentencing guidelines. Unlike England & Wales, they are not required to follow them. If the judge wants to go below the minimum, they can give any reason they want - that the prisons are too full or that they don't agree with the guidelines, for example, neither of which would be acceptable in England & Wales. The same is true for going over the maximum.

In England & Wales, a sentence can be challenged purely on the grounds that it is outside the sentencing guidelines. In Scotland, that is not enough to challenge a sentence.

Clockto · 04/04/2023 21:34

I'm a former Scottish defence lawyer and I, and many of my contemporaries, find this 'extraordinary'. Also, he is appealing the conviction, not the sentence.

happydappy2 · 04/04/2023 21:54

I hope the sentence is overturned-this guy deserves prison

prh47bridge · 04/04/2023 23:08

Clockto · 04/04/2023 21:34

I'm a former Scottish defence lawyer and I, and many of my contemporaries, find this 'extraordinary'. Also, he is appealing the conviction, not the sentence.

Indeed, but the Crown Office is considering whether to appeal the sentence.

Tabasco007 · 05/04/2023 07:28

Shelefttheweb · 03/04/2023 17:37

Scottish Government: 4 year olds are totally capable of knowing what gender they are and consenting to sterilisation and lifelong medication, but 17 year olds can’t be expected to be held accountable for rape.

Well yes, madness

crunchermuncher · 05/04/2023 07:38

prh47bridge · 04/04/2023 21:04

It does have purposes set by the Sentencing Council based on the Act of Parliament I quoted. I admitted that I had misunderstood that the relevant clauses were actually included in Scottish law rather than the Sentencing Council using them as the basis for the purposes of sentencing in Scotland. As I said earlier, I am not from Scotland.

I have no idea what you mean when you say that sentencing is done on the age of the offender. In England & Wales, the sentencing guidelines apply equally to all offenders over the age of 18. There are a number of offences where legislation sets a reduced sentence if the offender is under 21. Apart from those, you don't get a lighter sentence simply for being younger. You do get a lighter sentence if you have no previous relevant convictions and, of course, that is more likely to apply to a younger offender. And there are some offences where the age differential between the offender and the victim is taken into account. If you believe there are sentencing guidelines that specifically take age into account other than as required by legislation, perhaps you can point them out.

As for the functional difference, it isn't difficult. A judge in England &Wales must follow the sentencing guidelines. They can only impose a sentence below the minimum specified in the guidelines if they can show that the minimum sentence would be contrary to the interests of justice in this particular case. Absent such reasons, they must follow the guidelines. A judge in Scotland is only required to "have regard" to the sentencing guidelines. Unlike England & Wales, they are not required to follow them. If the judge wants to go below the minimum, they can give any reason they want - that the prisons are too full or that they don't agree with the guidelines, for example, neither of which would be acceptable in England & Wales. The same is true for going over the maximum.

In England & Wales, a sentence can be challenged purely on the grounds that it is outside the sentencing guidelines. In Scotland, that is not enough to challenge a sentence.

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I'm sure all of that will be of much comfort to the girl and her family....

prh47bridge · 05/04/2023 07:47

crunchermuncher · 05/04/2023 07:38

I'm sure all of that will be of much comfort to the girl and her family....

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I agree this is a somewhat irrelevant argument. On topic, my view is that the judge has got this badly wrong. The judge should have decided that this is a situation where no sentence other than jail is appropriate. The sentencing guidelines do not prevent the judge from making such a decision. I hope the Crown Office decides to appeal on the grounds that the sentence is unduly lenient.