The Scottish Government

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04. STATUTORY STATEMENT OF THE PURPOSE AND PRINCIPLES OF SENTENCING

The purpose of sentencing

4.1 We consider that the purpose of sentencing should be laid down in statute to create a straightforward and transparent framework around which sentencers can base their decisions in individual cases. We propose that the purpose of sentencing should draw on each of the following to a varying degree, depending on the circumstances of the case:

• punishment
• protection of the public or incapacitation of the offender
• deterrence
• rehabilitation and reform
• reparation and/or restoration

4.2 Our proposal is aimed at strengthening confidence in the sentencing process by helping the public to understand that, while punishment of the offender is rightly a central feature of that process, it is not the only feature. Sentencing should also provide the court with the ability to take action to protect the public from violent, sexual and other dangerous offenders.

4.3 The courts should be able to use sentencing as a deterrent - to send a clear message to those within our society who might consider committing a crime that offending behaviour is not to be tolerated. Sentencing should also offer offenders the opportunity to reform and rehabilitate, to become valued, productive members of Scottish society and steer clear of the criminal behaviour that ruins lives - their own and those of the people they offend against. Finally, we consider that sentencing should have regard to the interests of the victim - by demonstrating that justice has been done and, where appropriate, ensuring that victims are properly compensated.

Question 14
Do you agree with our proposals for a statutory statement on the purpose of sentencing? If not, how do you think these proposals could be modified to make them more effective?

The principles of sentencing

4.4 Outlining the purpose of sentencing in statute will provide people with a much clearer understanding of what sentencing is actually for. By taking a similar approach to the principles of sentencing, we can help to ensure that the public is clear on the key factors that every sentencer must have regard to when making decisions in individual cases. Once again, we consider that this will increase transparency and lead to a greater appreciation of the sentencing process.

4.5 New Zealand's Sentencing Act 2002 created a set of principles for sentencing by detailing the various elements that the courts must consider when dealing with an offender. We consider that a similar approach should be adopted in Scotland. The set of principles we propose reflects a series of established factors already taken into account by the courts in Scotland. This has not, however, always been clear to the general public. To reassure the public that the courts take a consistent approach, and to provide greater clarity and transparency, we propose that the courts should have regard to the following statutory principles when making sentencing decisions:

• All of the facts and circumstances surrounding the offence and the offender, including:
  • the seriousness of the offence in comparison with other types of offences;
  • the effect of the offending on the victim or victims;
  • the range of penalties available for the particular type of offence;
  • the desirability of consistency with sentencing levels for similar offences; and
  • the particular circumstances of the offender, including their family situation, level of risk and willingness to reform.

4.6 The current use of Social Enquiry Reports is, in some cases, a formal reflection of this final principle. However, the principle itself should be an element for consideration in every case. An offender's family situation should be taken into account. Similarly, the danger that an offender may present to the public at large should form part of the consideration of sentence, as should their willingness and/or ability to rehabilitate or reform.

Question 15
Do you agree with our proposals for a set of statutory principles in relation to sentencing? If not, how do you think these proposals could be modified to make them more effective?

Intoxication as a mitigating factor

4.7 Since the 1980s, High Court judgements have made it clear that alcohol or intoxication should not be regarded as a mitigating factor in the commission of crimes. However it is still the case that intoxication is often presented to the courts by the defence as an excuse or reason for offending behaviour. We know that this concerns a great many people in Scotland - particularly in relation to violent crime.

4.8 We believe that being voluntarily drunk or intoxicated is never an excuse for offending. In our recent consultation paper on alcohol misuse, Changing Scotland's Relationship with Alcohol, we demonstrated that in 2006-07 it cost our criminal justice system and emergency services a total of £385 million to deal with the effects of alcohol misuse ⁵. We also know that there is a very strong link between alcohol and offending. For example, almost half (45%) of those serving a custodial sentence in 2007 said they were drunk at the time of the offence ⁶. Analysis carried out by Strathclyde Police has shown that, of the 5,000 prisoners processed by one Glasgow police station in 2006-7, over 60% were under the influence of alcohol and/or drugs ⁷. The same study revealed that a massive two-thirds of those detained for violence were under the influence of alcohol.

4.9 Whilst it is not set out in statute, the Sentencing Guidelines Council for England and Wales has issued a guideline on seriousness and sentencing. Included in that guideline are lists of factors which would tend to indicate higher and lower culpability. One of the factors considered to indicate higher culpability is the commission of an offence while under the influence of alcohol or drugs. In New Zealand's aforementioned Sentencing Act 2002, voluntary intoxication has been listed as a 'statutorily excluded sentencing factor'.

4.10 To make clear the fact that being drunk cannot be an excuse for offending behaviour, we propose to enshrine in statute that the commission of an offence while voluntarily under the influence of alcohol should not be considered as a mitigating factor by the courts.

Question 16
Do you agree with our proposals to state explicitly in statute that voluntary drunkenness or intoxication can never be considered a mitigating factor by the courts? If not, it would be helpful if you could provide your reason(s).

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