Most of us by now have some familiarity with the Guidelines produced by the English Sentencing Council and its predecessor, the Sentencing Guidelines Council. They can be remarkably useful elsewhere, including in this jurisdiction, for the purposes of identifying the factors to be considered when assessing the gravity of particular offences and establishing penalty ranges. Obviously, the specific sentence starting points and ranges they recommend are of little use elsewhere, if only because most prisoners in England and Wales serve no more than half of the terms actually imposed (though the statute law in this area is now exceedingly complex).
We tend to pay less attention to what is happening north of the border in Scotland, despite its population being about the same as our own (5.5 million there, 5 million here). Admittedly, there is a vast difference between the prison populations of the two countries. Scotland usually has an average daily prison population of about 8,000 (somewhat lower at present, largely because of Covid-19) while our average daily population is something less than 4,000. Rather paradoxically, however, when seeking inspiration for law reform and persuasive authority for advocacy purposes, we tend to look to much larger jurisdictions such as England and Wales, Canada, Australia and even the United States (with its 330 million inhabitants). Yet, the scale of the problems with which those countries must contend means that their laws, practices and institutional arrangements may not readily be transferable to smaller jurisdictions such as Ireland and Scotland.
It seems to be the fate of small jurisdictions that their laws and jurisprudence attract little interest elsewhere. But perhaps we also tend to shy away from Scotland because it is a “mixed” jurisdiction with elements of civilian law (derived from Roman law) and common law, and also because some of its terminology may seem strange (with its procurators fiscal, advocates depute, solemn procedure, and so forth). Further, Scottish criminal law has, traditionally at least, been based on common law to a much greater extent than Irish or English law. However, its modern criminal statutes are often of considerable comparative interest. I am thinking, for example, of the Sexual Offences (Scotland) Act 2009 and the Age of Criminal Responsibility (Scotland) Act 2019, to name but two. We might also take some interest in the work of the Scottish Sentencing Council, especially with the establishment of a Sentencing Guidelines and Information Committee here in Ireland under the Judicial Council Act 2019. However, I regret to say that, so far, the work of the Scottish Council has not been very inspiring.
The Scottish Sentencing Council was established by the Criminal Justice and Licensing (Scotland) Act 2010 (Part 1) and was formally launched in 2015. It is an independent advisory body with 12 members assisted by a secretariat, and its functions include the preparation of guidelines on the principles and purposes of sentencing, sentencing levels and related matters. Every guideline prepared by the Council must be submitted to the High Court (Scotland’s highest criminal court) for consideration. The Court may approve a guideline in full, amend it or reject it. So far, the Council has produced two short guidelines that have been approved, one on the principles and purposes of sentencing and another, The Sentencing Process, which has just come into effect and is the subject of this post. The Council has recently drawn up another guideline, this time on sentencing young people, which is about to be submitted to the High Court.
A few interesting features of the general statutory framework may first be noted. The Criminal Procedure (Scotland) Act 1995 expressly provides for the delivery of guideline judgments by the senior appeal courts. Both the High Court and the Sheriff Appeal Court, when disposing of an appeal against sentence, may pronounce an opinion on “the sentence or other disposal or order which is appropriate in any similar case” (ss. 118 and 189). In fact, very few guideline judgments have been delivered under these provisions since they were introduced more than a quarter of a century ago. The best known is probably Du Plooy v HM Advocate 2003 SLT 1237 on discounts for guilty pleas. The most recent, from the High Court at least, seems to be HM Advocate v Graham 2010 SLT 139, on sentencing for child pornography offences. Unfortunately, here in Ireland, such was the haste with which key sentencing provisions of the Judicial Council Act 2019 were drafted that they fail to state if senior appeal courts may continue to develop sentencing guidelines once the Judicial Council starts do so. In fact, some contributors to the Seanad debates seemed unaware that the courts had begun to issue guideline judgments. The Bill, quite famously, got very short shrift in the Dail where it passed through all stages in less than two hours. I believe that the Court of Appeal and Supreme Court may continue to issue guideline judgments, though they might decide not to do so in respect of offences or general matters covered by Council guidelines. Both, after all, are constitutional courts and it would take clear statutory language to deprive them of such a power, if it can be done at all.
As far as guidelines produced by the Scottish Sentencing Council are concerned, the Criminal Justice and Licensing (Scotland) Act 2010 (s. 6) provides that a court, when sentencing an offender, must “have regard to any sentencing guidelines which are applicable in relation to the case.” So, you now know where s. 92 of our Judicial Council Act 2019 came from. The Scottish statute goes on to provide that if a court decides not to a follow an applicable guideline, it must state the reasons for its decision. Our equivalent provision (the same s. 92 of the 2019 Act) states that a court must have regard to relevant guidelines “unless satisfied that to do so would be contrary to the interests of justice.” That phrase was lifted from the (English) Coroners and Justice Act 2009. s. 125 (now s. 59 of the Sentencing Act 2020), though the English Act obliges courts to “follow” any relevant guidelines, subject to the qualification just mentioned.
The Scottish Guideline on the Sentencing Process
This guideline, which became effective on 23 September 2021, has as its stated purpose to provide “a framework for the sentencing process. It sets out a sequence of actions or ‘steps’ which courts should follow in order to reach a sentencing decision, including some of the factors which may be taken into account. [The guideline is intended to] promote a consistent approach to the process of sentencing in Scotland’s courts and will enhance understanding of that process.” It is a short document the first part of which sets out eight steps that must the followed in sentencing, and the remainder is an elaboration on those steps. The first four steps “arriving at a headline sentence” are: (1) assess the seriousness of the offence; (2) select the sentencing range; (3) identify aggravating and mitigating factors; and (4) determine the headline sentence. The next three, “other considerations” are: (5) take account of a guilty plea; (6) consider time spent in custody, and (7) consider ancillary orders. Finally, under “imposing sentence,” step (8) is “impose sentence and give reasons.”
Headline sentence
The term “headline sentence” is now well familiar to us as a result of a series of decisions by the Court of Appeal. See, in particular, Molloy [2018] IECA 37. As to its meaning, the locus classicus is probably the following statement by the Court (Edwards J.) in Byrne (Leon) [2018] IECA 120 at [61]:
“A headline sentence is required to reflect the gravity of the offence having regard to the offender’s culpability and harm done. Accordingly, having identified the spectrum of penalties available to her, the sentencing judge was required to locate this particular case on that spectrum, having regard to its gravity, determined by reference to the culpability of the offender and the harm done by the offending conduct. We have previously recommended that a judge should perform an initial assessment of gravity based on the intrinsic moral culpability, and then adjust the provisional figure up or down, as appropriate, to reflect aggravating or mitigating factors bearing on culpability that are particular to the individual offender’s case.”
Under our system, therefore, a headline system is identified by reference to the gravity of the offence, gravity, in turn, consisting of harm and culpability. Certain aggravating and mitigating factors are, of course, relevant for this purpose. For example, a person’s culpability, as measured at the time of the offence, may be reduced by virtue of youth, disability, provocation, coercion or some similar factor. Likewise, certain factors may increase gravity, e.g. the use of a firearm unless this is a definitional element of the offence. However, many other mitigating factors (in particular) are not really relevant to offence gravity. They relate instead to the offender’s personal circumstances at the time of sentence (e.g. illness, disability, responsibility for the are of young children) or else to the offender’s response to the charge (e.g. a guilty plea or co-operation with the law enforcement authorities). Factors falling into this second category are considered under the second limb of the proportionality principle. Bear in mind that, under our law, a sentence must be proportionate to the gravity of the offence and the personal circumstances of the offender. It is for this reason that we favour the “structured” or “two step” approach to the selection of sentence, as opposed to the “instinctive synthesis” approach favoured in Australia where, according to High Court authorities such as Markarian (2005) 228 C.L.R. 357 and Barbaro (2014) 253 C.L.R. 253, a judge must balance all the relevant factors in the case rather than break the case down into component parts.
The Scottish guidelines smacks of instinctive synthesis to the extent that it requires all aggravating and mitigating factors, apart from a guilty plea, to be considered before a headline sentence is reached. Granted, the Scottish system is similar to ours in so far as it requires that all relevant aggravating and mitigating factors should be identified and appropriate weight attributed to them. However, in terms of developing sentencing jurisprudence and, above all, consistency of approach, our system seems preferable. (In this regard, it should be recalled that the Scottish Council’s first statutory objective is “to promote consistency in sentencing practice”: Criminal Justice and Licensing (Scotland) Act 2010, s. 2). Consider, for example, an offence for which there isn’t a formal guideline, and there are still many such offences in this jurisdiction. Let us take a case of theft where the offender had stolen a large sum of money from his employer over a period of years. Here, the trial court will be required, first of all, to fix a headline sentence and then make adjustments to reflect personal mitigating circumstances. Once all those circumstances are duly considered, the ultimate sentence may be much lower than the headline sentence. If the case goes to the Court of Appeal (and there is a strong chance that such a case will), that Court will be in position to adjudicate upon the appropriateness of the headline sentence which it may approve or vary. Even if no further general guidance is offered, the Court of Appeal decision will still be of some assistance to trial courts in identifying headline sentences in similar cases, while bearing in mind the well-justified caveats about use of comparators.
The Scottish guideline, on the face of it, seems less preferable in this regard. If headline sentences reflect all mitigating and aggravating factors, and not just those relevant to the assessment of gravity, they will fail to offer much by way of useful guidance for the sentencing of similar offences in the future. This is on the assumption that no distinction is routinely drawn between what we call a headline sentence and the ultimate sentence, apart from the guilty plea and credit for time in custody. However, the Scottish guideline has some positive features in this respect. For example, it deals in some detail with the concept of offence seriousness which, as here and in England and Wales, is an amalgam of harm and culpability. It lists some general factors that are relevant to the assessment of culpability, such as whether the offender intended to cause ham, whether and to what extent there was planning or premeditation involved, and the offender’s age and level of maturity at the time. Factors relevant to the assessment of harm include deliberate harm or degradation of the victim, multiple victims, a sustained offence or repeated offences against the same victim, and high value of property stolen.
Credit for guilty pleas
In Scotland, as in many other jurisdiction, a defendant who pleads guilty is usually entitled to a reduced sentence on that account. Jurisdictions differ, however, in terms of whether they treat a guilty plea as yet another mitigating factor or as an independent factor that calls for a “discount.” I wrote about this in a previous post, Sentencing Academy publishes papers on victim personal statements and reductions for guilty pleas, 24 December 2020. (There wasn’t much else to do on Christmas Eve 2020!). Again, I would draw attention to the excellent paper mentioned there, Sentence Reductions for Guilty Pleas: A Review of Policy, Practice and Research by Jay Gormley, Julian V Roberts, Jonathan Bild and Lyndon Harris, available at https://sentencingacademy.org.uk. English sentencing guidelines adopt the discount approach. Take, for example, the definitive guideline on robbery. A reduction for a guilty plea, where applicable, is given at Step 4, by which time the Court will have identified the appropriate starting point and category range, having had regard to all factors increasing and reducing seriousness or reflecting personal mitigation. Here, in Ireland and in other common-law jurisdictions, the general practice is to treat a guilty plea as yet another a mitigating factor that may justify a reduction in the headline sentence. Scotland has now adopted the English model because, as indicated earlier, any reduction for a guilty plea, described elsewhere in the guideline as a “discount”, is considered after the headline sentence has been determined, but that headline sentence, as noted, will reflect all other mitigating factors. In truth, the practical difference between the two approaches may not be very significant, if at all. Perhaps one advantage of the English and Scottish approach is that it ensures that a court will give due consideration to a guilty plea, since it is a distinct step in the sentencing process. However, in other systems, including our own, it is most improbable that a court would forget, or be allowed to forget, to consider a guilty plea, given its widely recognised importance for sentencing purposes. What really matters is whether the difference of approach makes any difference to outcome. Suppose, an offender pleaded guilty to robbery for which the headline sentence (as understood in our system) was fixed at 7 years (84 months). Let us suppose the court was satisfied that the appropriate reduction for the guilty plea was 25% and that the offender was entitled to further reductions of 10% for absence of previous convictions and 5% for efforts to address addiction since committing the offence. A total reduction of 40% would lead to an ultimate sentence of about 50 months. If the guilty plea were acknowledged by way of separate discount, the headline sentence would be reduced in the first instance by 15%, leading to a penultimate sentence of 71 months and a 25% reduction on that would produce an ultimate sentence of 53 months. From a defence perspective, therefore, our present system seems more advantageous.
Intoxication
The Scottish guideline includes a list of possible aggravating factors and a list of possible mitigating factors, the former being conspicuously longer than the latter. One of the aggravating factors is that “the offence was committed whilst under the influence of alcohol or drugs which were consumed voluntarily.” No further comment or explanation is given, but there is a similar provision in England and Wales in the General Guideline: Overarching Principles, effective from1 October 2019. The comment offered there is worth quoting in full:
“The fact that an offender is voluntarily intoxicated at the time of the offence will tend to increase the seriousness of the offence provided that the intoxication has contributed to the offending.
This applies irrespective of whether the offender is under the influence of legal or illegal substance(s).
In the case of a person addicted to drugs or alcohol the intoxication may be considered not to be voluntary, but the court should have regard to the extent to which the offender has sought help or engaged with any assistance which has been offered or made available in dealing with the addiction.
An offender who has voluntarily consumed drugs and/or alcohol must accept the consequences of the behaviour that results, even if it is out of character.”
We may leave aside for another day the third paragraph of this comment because it deals with the vexed question of addiction and its impact on criminal responsibility. Suffice it to say that courts in some jurisdictions, including Ireland, are prepared to treat chemical addiction as a mitigating factor at sentencing, in some circumstances at least. See, for example, Fitzgibbon [2014] IECCA 12; [2014] 2 I.L.R.M.116 at [9.3] to [9.8]. There is, of course, an abundant academic literature on this entire topic. See, for example, the various essays in Jeffrey Poland and George Graham (eds), Addiction and Responsibility (Cambridge, MA: MIT Press, 2011).
Our concern here is with the impact of intoxication simpliciter on sentence. This is a matter on which there is little judicial authority, even internationally, which is surprising given the prevalence of intoxicated offending. However, from what exists, the general consensus seems to be that intoxication, whether resulting from drink or drugs, should definitely not be treated as a mitigating factor. The one slight exception to this is that an offender may be entitled to some mitigation if the intoxication caused him or her to act entirely out of character. Even this would probably apply only in a case where the offender was entirely unaccustomed to taking drink (or perhaps drugs) and could not reasonably have foreseen that it would or might produce the effect that it did. A number of Australian cases deal with this matter very well, e.g. Hasan [2010] VSCA 352. See also the observations of our Court of Appeal in Hynes [2016] IECA 102 at [54].
The Scottish guideline, as noted, simply states that it is an aggravating factor that the offence “was committed whilst under the influence of alcohol or drugs which were consumed voluntarily.” Certainly, this should not be a mitigating factor, except perhaps in the very limited and rare circumstance mentioned in the previous paragraph. Instead, it should ordinarily be a neutral factorl, though I accept that it could be aggravating, indeed seriously aggravating, if offender deliberately became intoxicated in order to summon up the courage to commit the offence or if, for example, the offender was well aware of his or her own propensity to act in an aggressive manner while under the influence of drink or drugs. The English guideline is a little more subtle in this regard in that it requires the intoxication to have contributed to the offending. In most cases it will probably have done just that, but at least a court must be so satisfied before treating it as an aggravating factor.
Sentencing for multiple offences
Sentencing has its share of moral and policy dilemmas for which there are no clear or, at least, no generally agreed solutions. The treatment of previous convictions is one of those and the question of whether multiple terms of imprisonment imposed at the same time should be ordered to run concurrently or consecutively is another. The Scottish Guideline is distinctly unhelpful in this regard as it merely states the obvious. Effectively, what is says is that a court has discretion as to whether to multiple prison sentences should be made concurrent, consecutive or partly concurrent. It notes that that court may impose a separate sentence for each offence or a “cumulo” sentence for all the offences. That expression “cumulo” seems peculiar to Scotland, and occasionally appears in its case law. However, the concept itself is well known to us.
The English Sentencing Council has produced a definitive Guideline entitled Taking Offences into Consideration and Totality which deals with the use of concurrent and consecutive sentences but, ultimately, it provides no greater guidance than the relevant common-law principles (applied here in Ireland and elsewhere) which it effectively follows.
To what extent persons sentenced simultaneously for several offences (or “multiple offenders” as they are often known nowadays) are punished more heavily than somebody convicted of only one of the relevant offences remains an open question. It is a rather difficult matter to investigate empirically. However, a recent study by Mandeep J. Dhami revealed that in England and Wales, being a multiple offender as opposed to an offender convicted of a single offence was not a significant predictor of whether a custodial sentence would be imposed or the length of a custodial sentence. See Dhami, “Sentencing Multiple-Versus Single-Offence Cases: Does More Crime Mean Less Punishment?” (2021) British Journal of Criminology (advance electronic publication, 21 May 2021).
Concluding comment
A question remains as to whether there is any value in the sort of guidance the Scottish Council has so far produced. It must, of course, be acknowledged that, so far, the Council has been concentrating on fundamental aspects of sentencing, and it may adopt a different approach once it starts formulating offence-specific guidelines. The first, very brief guideline, Principles and Purposes of Sentencing consists of a “core principle” that sentences must be fair and proportionate, and it elaborates somewhat on that, though in very general terms, by stating, for example, that similar cases should be treated in a similar way, thereby “assisting consistency and predictability.” It concludes by setting out the purposes of sentencing, but “in no particular order,” These are: protection of the public (including preventive measures and deterrence), punishment, rehabilitation, giving the offender the opportunity to make amends, and expressing disapproval of the offending behaviour.
The guideline under discussion here, The Sentencing Process, prescribes the steps to be taken, and the order in which they must be taken, when selecting sentence in any case. It therefore aims to ensure uniformity of approach. Outcomes may still differ even in similar cases, but the standardised approach may help to reduce unwarranted disparities. Even if it does not have that effect, there is still a considerable normative value in having all sentences selected by the same method even if, as noted earlier, aspects of that method might be criticised.
Meanwhile, as the Judicial Council here in Ireland embarks on creating formal guidelines, the Scottish experience shows that there is more than one way of approaching the task. Our guidelines do not have to follow the English model. The ideal, perhaps, would be something less prescriptive than the English guidelines and more prescriptive than the Scottish guidelines (at least as they are shaping up now).
Sentencing, Crime and Justice 