Courts will require to have regard to rehabilitation as a primary consideration in sentencing young people, under a new guideline from the Scottish Sentencing Council.

Following consultation last year on a draft, the Council has now finalised the guideline, which will be submitted to the High Court for approval this month.

The Council bases its approach on recognition of young people's greater capacity for change. It considers this will help to achieve one of the guideline’s key aims: to reduce reoffending among young people.

Its guideline highlights the need to take into account factors common to many young people who commit offences, such as experience of trauma, including traumatic bereavement, and high levels of adverse childhood experiences.

The guideline will apply to all young people under the age of 25, as at the date when they plead or are found guilty. An independent analysis of responses to the consultation, published today, found the majority of individual respondents (as contrasted with organisations) to be opposed to this as being out of line with other age related laws and milestones, and as being "soft" on offenders at the expense of victims and wider society.

However in its own report on the consultation, also published today, the Council states: "we have not seen anything in the responses which calls into question the strength of the evidence on the development of cognitive maturity we have drawn on in developing the guideline". 

It considers that the responses highlighted "an apparent gap in understanding of the criminal justice system... Many individuals appeared to misunderstand what was being proposed in the draft guideline or were unaware of the current legislation relating to the sentencing of young people, which courts must follow and apply". 

The Council adds: "We consider it an important part of our remit to address this knowledge gap and in the coming months we will seek to raise awareness of the existing law as it applies to young people within the criminal justice system, what contributes to offending behaviour among young people and what might contribute to reducing reoffending."

Some changes were made to the draft on the basis of the consultation, along with feedback through direct engagement with victims' and survivors' organisations, and focus groups with young people carried out by the University of the West of Scotland.

These include clarification of the point at which courts should consider particular matters and why; clarification on how the impact on victims is to be taken into account; clearer guidance on how the assessment of a young person’s maturity bears on culpability; and making it clearer that other purposes of sentencing, such as punishment and protection of the public, remain relevant.

Lady Dorrian, Lord Justice Clerk and chair of the Council, commented: "The sentencing of young people is a complex and challenging exercise which requires a more individualistic approach, with a need to take the unique personal circumstances of the young person and their intellectual and emotional maturity into account. The guideline explains this and sets out the approach courts should adopt when carrying out that exercise.

"The views expressed in the consultation echo those expressed by members of the public in independent research that rehabilitation should be a primary consideration when sentencing a young person. The Council’s hope and expectation is that through greater emphasis on rehabilitation, encouraging the use of review hearings, such as for those carrying out unpaid work, and increased use of the children’s hearings system for those under 18, the guideline will bring long-term social and economic benefits by promoting reduced reoffending.”

She added: "We are satisfied having commissioned independent research that there is sufficient evidence to adopt a different approach to sentencing for those under 25.

"We fully considered all the views expressed, including those which did not support this specific proposal. The weight of the evidence on brain development, together with how this can be affected by factors such as trauma or adverse childhood experiences, has persuaded us that a more individualistic approach to the sentencing of those under 25 is necessary and appropriate in order to support rehabilitation and help to reduce reoffending. Courts will consider these factors while also taking account of the harm caused to the victim, before arriving at an appropriate sentence."