Go to jail?

Photo by 🇨🇭 Claudio Schwarz | @purzlbaum on Unsplash

Young offenders?

Well, not if you’re under 25 according to recent proposals published by the Scottish Sentencing Council as part of a public consultation process. The main function of the Scottish Sentencing Council is to demystify sentencing decisions and, therefore, educate the public about these matters.

The current proposal might seem very provocative and is bound to divide public opinion. Crime, after all, is a very emotive issue and everyone has an opinion about it whether you have been the victim or the criminal. The purpose of criminal law is about the State punishing those individuals who have broken the rules of the community by engaging in dangerous and/or anti-social activities.

The rationale for the Scottish Sentencing Council’s proposal is that scientific research (carried out by the University of Edinburgh) seems to show that the brains of people aged under 25 years have not fully developed i.e. matured.

Now, it is by no means certain that such a proposal will be implemented and the Scottish Sentencing Council is urging members of the public to respond to its consultation with their opinions on the matter.

https://consultations.scottishsentencingcouncil.org.uk/ssc/young-people/

It is certainly part of a wider strategy which fits in with attempts by the Scottish Government to reduce the numbers of people who are sent to prison each year. There is now perhaps a recognition that prison doesn’t always work. There has been a presumption operating for several years in Scotland, that people will not be sent to prison if the offence would normally be punished by a sentence of less than 6 months. Obviously, this presumption would be ignored if, for example, the offender was a person who persistently broke the rules.

Over the last year, this Blog has looked at a number of initiatives which have taken place which have been about taking different approaches to crime prevention or the rehabilitation of offenders.

In the Autumn (or Fall), I spoke to a group of students about an initiative called the “Call-In-Scheme” where Avon and Somerset Police in England were targeting first offenders aged between 16 and 21 who have been caught dealing drugs. The choice: go to court, be convicted with all the consequences this outcome will entail or go straight. Participants in the scheme were be selected by a panel. Predictably, such an approach sharply divided my audience.

Crime and kindness?

Last March, two American judges – Victoria Pratt and Ginger Lerner-Wren we’re invited to Scotland by Community Justice Scotland, a publicly funded body, where they were hoping to meet hundreds of people who deal with the Scottish criminal justice system.

The two judges were keen to emphasise that there should be more compassion in the criminal justice system when dealing with offenders. They pointed to impressive results in the United States – a New York court alone has seen a dramatic decrease of 20% in youth crime and a 10% reduction in crime overall by using radical methods to deal with offenders. One of the judges, Ginger Lerner-Wren established one of the first mental health courts anywhere in the world. The aim of this court (based in Florida) was to promote treatment of offenders as an alternative to traditional forms of punishment. Judge Pratt, on the other hand, specialises in “procedural justice” which works on the basis “that if people before the courts perceive they are being treated fairly and with dignity and respect, they’ll come to respect the courts, complete their sentences and be more likely to obey the law.”

The Glasgow Alcohol Court

This type of approach has already being piloted in Scotland: Sheriffs in Glasgow deal with cases where alcohol is a ‘contributory factor’ in crime. The Sheriff Alcohol Court has been operating since 2018 and its lifespan was extended in 2019. It now deals with domestic abuse cases involving alcohol. Punishments other than prison sentences are handed out by this court e.g. drug and alcohol treatment orders and community service orders. This approach recognises that criminals can turn their lives around and can become law abiding members of society. Being given a drug treatment order is not an easy option. Participants in schemes such as these are regularly tested and monitored. Break the rules and you will go to jail.

Age of criminal responsibility

In Scotland, in common with many penal systems around the world, we do use a person’s age to determine criminal responsibility. Currently, the age of criminal responsibility is 12 and there is a debate about whether this should be raised even higher. It is worth remembering that, for many years (until 2019 in fact), Scotland had one of the lowest ages of criminal responsibility anywhere in the Western World i.e. 8 years of age.

Somewhat mitigating this feature of Scottish criminal law was the fact that children were not tried in adult courts. The Children’s Hearing or Panel system was primarily set up for this very purpose. It was considered a revolutionary approach because it recognised that by stigmatising (and criminalising) children at a very early age, society could set them on a path from which there was no means of redemption. If you effectively abandoned a child at an early age, you were condemning them to a very grim future where they could (potentially) be in and out of prison for the rest of their lives.

Conclusion

The Scottish Sentencing Council’s proposal is very interesting and it will certainly form part of a lively discussion on how we continue to deal with crime in this country. The public now has 12 weeks to get involved in the consultation by giving their opinions on the matter.

It is important to appreciate that, under the proposals, judges will still be able to send people under 25 to prison if they think this is an appropriate punishment. What the proposals are allowing judges to do is to look more closely at a young person’s background e.g. mental health issues before sentence is passed. It remains the case that, where certain crimes are concerned, the imposition of a prison sentence will be most the appropriate action to take because the issue of public safety will be paramount. Clearly, someone like the notorious child killer Aaron Campbell, will not benefit from the proposals merely because they are under the age of 25.

A link to an article on the BBC News app about theScottish Sentencing Council’s proposal can be found below:

Draft sentencing guidelines say younger offenders should be treated differently because their brains are still developing.

Scottish courts urged not to jail ‘immature’ under-25s

Related Blog Articles:

https://seancrossansscotslaw.com/2019/05/08/the-age-of-criminal-responsibility/

https://seancrossansscotslaw.com/2019/02/27/criminal-responsibility/

https://seancrossansscotslaw.com/2019/03/12/crime-and-kindness/

https://seancrossansscotslaw.com/2019/02/19/dealing-with-alcohol-abuse/

https://seancrossansscotslaw.com/2019/08/30/once-a-criminal/

https://seancrossansscotslaw.com/2019/03/04/commit-the-crime-do-the-time/

https://seancrossansscotslaw.com/2019/04/02/victims-voices/

https://seancrossansscotslaw.com/2019/06/13/doing-time/

https://seancrossansscotslaw.com/2019/03/22/life-should-mean-life/

https://seancrossansscotslaw.com/2017/04/04/scottish-criminal-appeals/

https://seancrossansscotslaw.com/2019/01/29/crime-and-punishment-in-scotland/

Copyright Seán J Crossan, 28 February 2020

Doing time …?

Photo by Emiliano Bar on Unsplash

In a previous blog (“Commit the crime, do the time?” published on 4 March 2019), I examined the role of the Scottish Sentencing Council (established as a result of the Criminal Justice and Licensing (Scotland) Act 2010) in relation to the imposition of various sentences on convicted offenders. The Council took up its role from 2015 onwards.

On Monday 12 June 2019, the second most senior judge sitting in Scotland, Lady Dorrian, Lord Justice Clerk, announced that the Scottish Sentencing Council would conducting a public consultation in an attempt “to demystify” the factors by which a criminal court takes into consideration when imposing punishment on the offender.

The consultation exercise will tackle a perception which exists (rightly or wrongly) amongst the public that sentencing can be extremely inconsistent. It will address this problem by highlighting issues which are likely to be considered aggravating factors by a judge and thus lead to the imposition of a longer sentence. Aggravating factors would include whether the crime was premeditated or in situations where a weapon was used. Conversely, it is hoped that the exercise will pinpoint mitigating factors that a judge takes into account when a lighter sentence is passed e.g. genuine remorse shown on the part of the offender or any negative consequences that the offender’s children are likely to suffer.

Readers may wish to take part in the public consultation exercise and can so by clicking on the link below at the Sentencing Council’s website:

https://consultations.scottishsentencingcouncil.org.uk/ssc/the-sentencing-process/consultation/subpage.2019-05-29.0933048382/

In order to assist the public and other interested parties to complete the survey, the Council has provided a number of documents which can be accessed via the link below:

https://consultations.scottishsentencingcouncil.org.uk/ssc/the-sentencing-process/

The closing date for participation in this exercise is 6 September 2019.

A link to an article on the BBC website about the exercise can be found below:

https://www.bbc.co.uk/news/uk-scotland-48556439

The Scottish Parliament’s Justice Committee

This week, in a related matter, the Justice Committee at Holyrood (by 7 votes to 2) decided to support plans by the Scottish Government, which if carried, would extend the presumption against short prison sentences.

Currently, in Scotland, there is a presumption against the imposition of prison sentences of less than 6 months and the court will most likely impose an alternative punishment.

Interestingly, on 19 February 2019, Scottish Legal News reported that David Gauke MP, the UK Government’s Justice Minister, had stated that he would introduce legislation in England and Wales in order to follow current, Scottish criminal practice as regards sentencing i.e. a presumption against prison terms of less than 6 months:

https://www.scottishlegal.com/article/england-follows-scotland-s-lead-on-presumption-against-short-sentences

Copyright Seán J Crossan, 13 June 2019

Life should mean life?

Photo by Carles Rabada on Unsplash

What does a life sentence for homicide in Scotland actually mean?

Members of the public may scratch their heads when they are reading, viewing or hearing media reports about judges sentencing murderers. Does a 27 year prison sentence represent an adequate punishment in relation to a particularly horrific killing?

I use the figure 27 years quite deliberately because this was the sentence imposed on the murderer, Aaron Campbell, by Lord Matthews at the High Court of Justiciary on 21 March 2019. Campbell was convicted of the abduction and homicide of 6 year old Alesha MacPhail on the Isle of Bute in the summer of 2018.

What perhaps many people fail to realise is that when Lord Matthews imposed the prison sentence on Campbell, for the crime of homicide, this is merely the minimum term which he must serve before he is eligible to apply for parole. It does not mean that Campbell will be released in 27 years. His detention will merely be reviewed. He could be released, but this may well be on licence i.e. subject to very restrictive conditions. Any future Parole Board may well decide that it is not safe or appropriate to release this individual back into society in July 2045- or ever for that matter. The Parole Board May conclude that Campbell can never be rehabilitated.

In a previous post published on 4 March 2019 (Commit the crime, do the time?), I highlighted the fact that judges must work within sentencing guidelines laid down in legislation or developed by the Scottish Sentencing Council. Lord Matthews is a very experienced and senior member of the High Court of Justiciary and would have been well aware of these factors when sentencing Campbell.

A link to a BBC article about the sentencing of Aaron Campbell and footage of Lord Matthews’ sentencing statement can be found below:

Alesha MacPhail murder: Life sentence for Aaron Campbell after he admits guilt

Aaron Campbell was told that he would have to serve at least 27 years before he could apply for parole.

Lord Matthews’ sentencing statement can also be read on the website of the Judiciary of Scotland:

http://www.scotland-judiciary.org.uk/8/2163/HMA-v-Aaron-Campbell

Copyright Seán J Crossan, 21 March 2019

Commit the crime, do the time?

Photo by Deleece Cook on Unsplash

Sentencing of individuals who have been found guilty in the Scottish criminal courts is a crucial part of a judge’s role. Parliament (whether at Westminster or Holyrood) will often determine the length of sentences through the medium of legislation. Sentencing may also be influenced by judicial precedent.

A lot of misconceptions exist regarding sentencing by judges e.g. members of the public might believe that an offender found guilty of culpable homicide (murder) will serve 17 years only. This is a failure to appreciate that the offender in question must serve a minimum term of 17 years before they can apply for parole. The Parole Board may well refuse to release the offender. The main function of the Scottish Sentencing Council is to demystify sentencing decisions and, therefore, educate the public about these matters.

Sentencing is not just about imposing prison terms on the offender. Judges have a variety of options at their disposal:

  1. Admonition
  2. Caution
  3. Community Pay Back Orders
  4. Drug Testing and Treatment Orders
  5. Football Banning Orders
  6. Fines
  7. Reparation
  8. Restriction of Liberty Orders

A particularly useful resource for students and practitioners of Scottish criminal law is the website of the Scottish Sentencing Council:

https://www.scottishsentencingcouncil.org.uk/

This body was established by the Scottish Parliament in October 2015 as a result of provisions contained in the Criminal Justice and Licensing (Scotland) Act 2010. It consists of 12 members – a mixture of judicial, legal and lay individuals.

A list of the current membership can be viewed by accessing the link below:

https://www.scottishsentencingcouncil.org.uk/about-us/membership-and-recruitment/

According to the Council, its primary duties are as follows:

  1. the preparation of sentencing guidelines to be used by the courts
  2. the publication of guideline judgements which the courts have issued
  3. the distribution of information to the public and practitioners concerning sentences issued by the courts

The Council also carries out research into sentencing.

It is important to note, however, that its remit does not extend to involvement in individual sentencing matters. Crucially, this is a matter for Scottish criminal judges.

The first sentencing guidelines were approved by the High Court of Justiciary on 30 October 2018 and became operational on 26 November 2018.

The link to the principles governing sentencing can be found below:

https://www.scottishsentencingcouncil.org.uk/media/1927/guideline-principles-and-purposes-of-sentencing.pdf

Sentencing Video

One of the really interesting resources on the Council’s website is a video (using a fictional case study) which demonstrates how judges arrive at verdicts in criminal cases. The link to this resource can be found below:

https://www.scottishsentencingcouncil.org.uk/about-sentencing/sentencing-video/

Additional resources on sentencing

The website of the Judicary of Scotland also provides some very useful resources i.e. sentencing statements by judges which set out the rationale for the punishment(s) imposed on the offender by the criminal courts.

A link to a recent sentencing statement by a Lord Commissioner of Justiciary in the High Court at Edinburgh can be found below:

http://www.scotland-judiciary.org.uk/8/2146/HMA-v-Gavin-Scouler

Conclusion

The aim of the sentencing guidelines is to ensure that judges in the criminal courts are making decisions in a transparent and coherent way which the public can understand. Judges can and do come in for a lot of criticism when it comes to sentencing decisions. Often the public does not understand what lies behind these decisions and, frequently, certain sections of the media are not exactly helpful in this regard.

It should be appreciated that the hands of judges are tied by legislation and judicial precedent which govern sentencing.

The area of criminal law regulating the possession, supply and production of illegal drugs (whether Class A, B, C or temporary Class drugs) is a great example of the boundaries in which judges have to operate when imposing sentences for these types of offences. Although criminal justice is a devolved area, the laws governing illegal use of drugs are UK wide.

A link to the possible sentencing limits for drugs offences can be found below:

https://www.gov.uk/penalties-drug-possession-dealing

It is important to note that that the guidelines do not mean that sentences in similar types of cases will be exactly the same. Judges will take into account different factors when imposing sentences e.g. relevant previous criminal convictions, victim (impact) statements and whether the individual co-operated with the court by pleading guilty at an early stage of the proceedings.

Postscript

In May 2019, six men (involved in a Glasgow gangland feud) were jailed for a collective total of 104 years by Lord Mulholland at the High Court of Justiciary.

A link to an article on the BBC website containing the background to this story and a video of Lord Mulholland passing sentence can be found below:

Six jailed over Glasgow ‘war zone’ gang feud

Police said it was a miracle no-one died in the attacks, which took place in and around Glasgow.

Copyright – Seán J Crossan, 4 March and 10 June 2019

Scottish Criminal Appeals

Photo by David von Diemar on Unsplash

In two of my previous blogs (Life should mean Life? published on 22 March 2019 and Commit the crime, do the time? published on 4 March 2019), I discussed the sentencing process in relation to individuals who have been convicted of criminal offences in the Scottish Courts.

In Life should mean life?, I looked at the sentencing of the teenage murderer, Aaron Campbell by Lord Matthews in the High Court of Justiciary in Glasgow. Campbell was convicted of the murder of 6 year old Alesha MacPhail. Lord Matthews imposed a prison sentence of 27 years on Campbell. This is the minimum term which Campbell must serve before he is eligible to apply for parole. It does not mean that he will be released at the end of this term.

We learned today (4 April 2019), that Campbell‘s legal team has lodged a note of appeal against his sentence. He is not appealing against his conviction.

It will be interesting to see whether the Criminal Appeal Court of the High Court of Justiciary upholds the original prison term. There is always a risk for appellants like Campbell that the Criminal Appeal Court may increase his prison term.

A link to a BBC article discussing Campbell’s appeal can be found below:

Alesha MacPhail killer Aaron Campbell lodges appeal against sentence

Aaron Campbell, 16, is challenging the 27-year jail term he received for the murder of six-year-old Alesha MacPhail.

Postscript

On Tuesday 10 September 2019, Aaron Campbell successfully appealed against the length of the life sentence (27 years) that Lord Matthews had imposed on him following his trial and conviction for murder at the High Court of Justiciary in Glasgow. His prison sentence was reduced by 3 years. This decision was made by 3 senior Scottish judges sitting in the Appeal Court of the High Court of Justiciary in Edinburgh

Please see the link below to an article on the BBC website about the story:

Alesha MacPhail killer has sentence cut by three years

Copyright Seán J Crossan, 4 April and 10 September 2019