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Court Sentencing Guidelines In Scotland

Court Sentencing Guidelines In Scotland

Every case depends upon its own facts and circumstances and the personalities in the court where your case will be heard. For an informed discussion and advice on what you may expect by way of sentence in your own case just call us on 0800 011 9744.

There are no sentencing guidelines currently in existence in Scotland. In other jurisdictions like England the Magistrates are issued with guidance on sentencing.

Sentencing is a matter for the judge at first instance, who will consider each case on its own merits.

The judge’s discretion is tempered by statute ”which may provide for particular sentencing options, and occasionally, mandatory sentences” and the decisions of the Appeal Court.

Section 197 of the 1995 Act, headed, ”Sentencing Guidelines”, provides: Without prejudice to any rule of law, a court in passing sentence shall have regard to any relevant opinion pronounced under section 118(7) or section 189(7) of this Act Sections 118(7) and 189(7) empower the Appeal Court, when disposing both solemn and summary appeals, to pronounce an opinion on the sentence or other disposal or order which is appropriate in any similar case. The Appeal Court has apparently seldom used this power to issue ”advisory judgments” on sentencing matters.

Why

The sentencing system in Scotland has the advantage of being flexible and fair: each sentence will be tailored to the specific circumstances of the offence and the offender. The sentencing process is wholly undertaken by an independent judge who will have heard all the relevant evidence.

Developments

Recent research has found that although there is little evidence of widespread inconsistency in sentencing in Scotland, there is nonetheless a general perception of inconsistency.

Consistency in sentencing is seen as an essential part of fairness and justice: like cases should be treated alike. Consistent sentencing which is transparent and predictable is said to be important to maintain public confidence in the justice system. It also allows practitioners to provide better advice to their clients.

The Scottish Government has produced a consultation paper, Sentencing Guidelines and a Scottish Sentencing Council: Consultation and Proposals (September 2008) in which the establishment of a statutory sentencing advisory body ”a Scottish Sentencing Council (SSC)” is proposed. The SSC’s main function would be to prepare draft sentencing guidelines for approval by the Appeal Court. Consultation closes on 21 November 2008. This paper followed a report by The Sentencing Commission for Scotland, The Scope to Improve Consistency in Sentencing (2006), which had made similar recommendations.

The Position In England about Court Sentencing Guidelines

General

The Sentence Guidelines Council (SGC), advised by the Sentencing Advisory Panel, is responsible under the Criminal Justice Act 2003 for producing sentencing guidelines. Before the SGC was established, the Court of Appeal had responsibility for producing sentencing guidance.

Guidelines are produced for particular offences and classes of offences as well as on overarching principles, and issues such as reduction in sentence for a plea of guilty.

Road Traffic Offences

Most of the relevant SGC guidance on road traffic matters is contained in the current Magistrate’s Guidelines (also produced by the SGC), which has a section on motoring offences (pp 117-140).

Each offence (or class of offence) has its own separate guideline which charts the reasoning process that magistrates should follow when sentencing as well as giving a suggested appropriate range of sentences depending on the circumstances of the particular offence.

The guidelines are generally structured as follows:

  1. Name of offence and statutory provision
  2. Statement of statutory minimum or maximum; whether statute provides any mandatory sentence
  3. Reasoning process to be followed
  • Form preliminary view of the appropriate sentence
  • Appropriate starting point
  • Circumstances of the offence ”starting point” range
  • Effect of aggravating/mitigating factors
  • Non-exhaustive lists of factors indicating higher or lower culpability
  • Consider offender mitigation (circumstances of offender)
  • Consider guilty plea reduction
  • Consider ancillary orders
  • Decide sentence and give reasons

The full version of the Guidelines is available at: http://sentencingcouncil.judiciary.gov.uk/docs/MCSG_%28web%29_-_April_2014.pdf 

Extracts from Magistrates Guidelines Road Traffic Offences

The following tables are extracted from the current Guidelines and show starting points and ranges for common road traffic offences according to the circumstances of the offence. They do not reproduce the guideline for any particular offence in full. Reference is made to bands of fines: the approach to financial penalties is dealt with in detail in the Guidelines at pp 147 et seq.

Excess alcohol (drive/attempt to drive) (s 5(1)(a) RTA 1988)

Alcohol level Starting point Range Disq Disq 

2nd offence in 10
years

Breath (mg) Blood (ml) Urine (ml)
36-59 81-137 108-183 Band C
fine
Band C
fine
12-16
months
36-40
months
60-89 138-206 184-274 Band C
fine
Band C
fine
17-22
months
36-46
months
90-119 207-275 275-366 Medium
level community order
Low level
community order – high level community
order
23-28
months
36-52
months
120-150
and above
276-345
and above
364-459
and above
12 weeks
custody
High
level community order to 26 weeks
custody
29-36
months
36-60
months

Dangerous driving 9s (s 2 RTA 1988)

Examples of nature of activity Starting point Range
Single
incident where little or no damage or
risk of personal injury
Medium
level community order
Low level
community orderDisqualify 12-15 months
Incident(s) involving excessive speed or
showing off, especially on busy roads or
in built up areaORSingle
incident where little or no damage or
risk of personal injury but offender was disq driver
12 weeks
custody
High level
community order to 26 weekscustodyDisqualify 15-24 months
Prolonged
bad driving involving deliberate
disregard for safety of othersORIncident(s) involving excessive speed or
showing off, especially on busy roads or
built up area, by disq driverORDriving
as described in box above while being
pursued by police

 

Crown
Court
Crown
Court

Speeding (s 89(10) RTRA 1984)

Speed limit (mph) Recorded speed (mph)
20 21-30 31-40 41-50
30 31-40 41-50 51-60
40 41-55 56-65 66-75
50 51-65 66-75 76-85
60 61-80 81-90 91-100
70 71-90 91-100 101-110
Starting point Band A
fine
Band B
fine
Band B
fine
Range Band A
fine
Band B
fine
Band B
fine
Points/disq 3 pts 4-6 pts
OR disq 7-28
d
Disq 7-56 d OR 6 pts