Sentencing guidelines for Scotland must be properly considered and tested before being introduced, the Lord Justice Clerk has stated in response to concerns expected to be raised in a Holyrood debate today.

A Scottish Labour motion on justice states that the Parliament is "concerned that it has taken three and a half years for the Scottish Sentencing Council to produce one set of sentencing guidelines; notes that guidelines on sexual assaults will not be available until after 2021, and considers this unacceptable".

The party's justice spokesperson, Daniel Johnson MSP, has already written to Lady Dorrian, the Lord Justice Clerk, who also chairs the Scottish Sentencing Council, raising the case of 18-year-old dental student Christopher Daniel, who was given an absolute discharge after being found guilty of sexually assaulting a six-year-old girl and questioning the delay in producing further guidelines.

Set up in 2015, the Council's first set of guidelines, on the general principles and purposes of sentencing, was approved by the High Court in October. In its work programme for 2018-21 it intends to develop guidelines relating to the sentencing process, sentencing young people, causing death by driving, environmental and wildlife offences, sexual offences and sentence discounting. The proposed guideline on the sentencing process will be issued for public consultation this year, along with a guideline on the sentencing of young people.

The Council has also started work on the topics of sexual offences and sentence discounting, and has announced plans to carry out preparatory work on domestic abuse once the new offence comes into force, but these are not scheduled within the same time 

Responding to the parliamentary motion, Lady Dorrian said: "We welcome parliamentary interest in our work, and agree that transparency and consistency in sentencing are vital. In Scotland's first sentencing guideline, approved by the High Court last year, we set out both concepts as underpinning all sentencing decisions. The Principles and Purposes of Sentencing guideline states that 'reasons for sentencing decisions must be stated as clearly and openly as circumstances permit', and that 'sentencing decisions should treat similar cases in a similar way, assisting consistency and predictability'.

“However, the guideline also notes that treating cases similarly does not mean that they should be dealt with in exactly the same way. Each case is unique, and variations in sentencing will occur as a result of the presiding judge taking into account the particular circumstances arising. For this reason, we consider it undesirable to use decisions in individual cases as the rationale for changing sentencing policy in general. Such an approach would be unlikely to promote consistency, predictability, or transparency."



She added: "With regard to the timing of the Council's work programme, we recognise the desire to have sentencing guidelines in place as quickly as possible. However, the potential impact of guidelines which have not been properly considered and tested is considerable, both for individual cases and for the justice system as a whole. That’s why we took an early decision that our work should be evidence-based, involving appropriate levels of research and consultation, including public consultation on all guidelines.

"We have committed to taking the necessary time to understand current practice, to look at what works and why, and to listen to those involved in and affected by sentencing decisions, including victims. This means that guidelines will take longer to develop, but to do otherwise would not, in our view, be an appropriate way to approach a task of such importance.

"In relation to sexual offences and the suggestion that the relevant guidelines be expedited, we would note that this is a wide ranging, sensitive, and complex topic, which will require careful consideration. While we do not anticipate guidelines on sexual offences being finalised during the current business plan period, this is not a delay but simply reflects the Council’s current work programme and the likely work involved in addressing this subject. We have already held initial discussions with the judiciary and with a range of organisations with interest and experience in the sentencing of sexual offences, including victim support organisations, and we have begun research into public views in this area. It is likely that the Council will develop multiple guidelines on sexual offending, and we hope to announce the areas of initial focus soon. However, given the seriousness and sensitivity of such offences, it is vital that any guidelines we produce are well-researched and fit for purpose."