The Scottish Government

SENTENCING AND CRIMINAL PENALTIES IN SCOTLAND

Penalties

General Points

The sentencing powers of Scottish criminal courts are as follows ('level' refers to the levels of fine for offences tried summarily - see Fines):

The limits to the sentencing powers of the Scottish criminal courts apply to all common law offences. Statutory provisions may extend or limit these powers. For example, the sheriff court is empowered by statute to impose up to 6 months imprisonment on summary conviction for a range of offences. It also has the power to impose exceptionally high maximum fines (up to £50,000 in certain cases) on summary conviction. (see paragraph 30).

Setting a maximum penalty is usually the only part that government and the Parliaments play in determining sentencing policy for a particular offence. The maximum should reflect the relative gravity of that offence. Within the sentencing framework and the maximum penalty laid down by the Parliaments, it is entirely for the courts to decide the appropriate sentence in each case which comes before them.

Beyond the special case of the mandatory life sentence for murder minimum or mandatory penalties are unacceptable. This is because cases will undoubtedly arise in which an offence has been committed, but there are strong mitigating factors and it would thus be wrong to penalise the offender heavily, if at all. Minimum penalties were once common, but have progressively been removed over the last century although some may linger on in older and unrevised legislation. Section 206 of the Criminal Procedure (Scotland) Act 1995 also provides a minimum period of imprisonment of 5 days for persons sentenced by a court of summary jurisdiction but that is simply a common sense approach for administrative convenience.

Mandatory determinate sentences of imprisonment or fines would not have flexibility and are to be avoided. An exception is provided by those offences under the Road Traffic Offenders Act 1988 for which disqualification from driving or endorsement of the licence is obligatory. There are special considerations here relating to the need to promote road safety and the court may in any case avoid its obligation if there are "special reasons". Fixed penalties and Procurator Fiscal Condition offers (fiscal fines) are also quite different because they are offered as an alternative to prosecution.

As a general rule, it is not Executive policy to provide different maximum penalties for first and for subsequent offences. These were abolished or allowed to "wither away" by the Criminal Justice Act 1982. In most instances, a first offender will not be fined a sum near to the maximum but on subsequent conviction for the same or closely related offence the fine is likely to rise. It is therefore unnecessary and inappropriate to fetter the judge's discretion, since he is best placed to assess the seriousness of the offence, any aggravating or mitigating factors, and what account to take of the offender's previous record. There are exceptional examples in statute (e.g. section 52 of the Criminal Law (Scotland) Act 1995 dealing with the offence of vandalism) where different maximum penalties are provided. But these should not be treated as the norm.