Written evidence submitted by the Scottish Sentencing Council (OUS0010)

Introduction

The Scottish Sentencing Council was established in 2015 as an independent, advisory body.

We carry out a range of work concerning sentencing in Scotland. Our responsibilities include:

• preparing sentencing guidelines for the courts
• publishing guideline judgments issued by the courts
• publishing information about sentences handed down by the courts.

The Council can also conduct research and provide general advice or guidance.

In carrying out our functions, we must seek to:

• promote consistency in sentencing practice
• assist the development of policy in relation to sentencing
• promote greater awareness and understanding of sentencing policy and practice.

We have published three general guidelines for all offences in Scotland on the principles and purposes of sentencing, on the sentencing process and on sentencing young people. We are now developing a number of offence guidelines.

We are submitting this consultation response in order to share our work around public understanding of sentencing. We recognise that there are differences between the sentencing regime in England and Wales, and that operating in Scotland. However, many of the same issues arise as matters of concern in both jurisdictions and we hope that observations on our experience of these issues may prove helpful.

Although we are not in a position to answer the first consultation question on ‘what the public knows about the current approach to sentencing in England and Wales’, we are submitting answers in relation to the other questions:

• How does the public access information on sentencing?
• What are the barriers to improving public awareness of how sentencing works?
• To what extent does public understanding of sentencing affect public confidence in the criminal justice system?
• What could be done to improve public understanding of sentencing?
• What is public opinion on sentencing, and how can it be ascertained or measured?
• To what extent should public opinion inform sentencing policy and practice?

The response includes reference to a number of reports conducted on behalf of the Council which look at public perceptions: ‘Public perceptions of sentencing in Scotland, Qualitative research exploring sexual offences’ published in 2021; ‘Public perceptions of sentencing in Scotland, Qualitative research exploring causing death by driving offences’ published in 2021; and ‘Public perceptions of sentencing, National survey report’ published in 2019.

‘Public perceptions of sentencing in Scotland, Qualitative research exploring sexual offences’[1] looked at public awareness of the law, and perceptions of harm, current sentencing, and the factors considered in sentencing. In relation to public perceptions, the report found that people were of the view that current sentences for sexual offences were too lenient. For some, this was linked to media representations. However, when members of the public went through a scenario based on a real case, they were surprised to find that the sentence they suggested was broadly in line with the actual sentence passed, which they considered to be ‘fair’.

‘Public perceptions of sentencing in Scotland, Qualitative research exploring causing death by driving offences’[2] looked at awareness of the law, support for proportionate sentencing, perceptions of sentencing and sentencing factors, and the importance of communication. In relation to public perceptions, the need for flexibility was recognised, but the view on appropriate sentencing varied with some considering that prison should only be used in the most severe cases, while others said that current sentencing practices were too lenient and did not reflect the loss.

‘Public perceptions of sentencing, National survey report’[3] looked at sentencing awareness, confidence in the Scottish justice system, how factors should be taken into account when sentencing, and perceptions of sentencing. In relation to public perceptions, the report found that public attitudes vary depending on the specific offence in question.

Access and barriers

There are a variety of ways in which members of the public access information about sentencing in Scotland. For people not actively seeking specific sentencing information, reports of court proceedings published or broadcast in the mainstream media appear to be a significant source. Research commissioned by the Council on the perceptions of sentencing of sexual offences found that some public perceptions of sentencing were linked to media representations,[4] although there was some recognition that cases that appear in the media may be atypical.

The Council’s guideline on the principles and purposes of sentencing requires, amongst other things, reasons for sentencing decisions to be stated as clearly and openly as circumstances permit. Additionally, the sentencing process guideline describes how courts in Scotland reach sentencing decisions. Taken together, these guidelines may assist reporters to better understand the reasons behind a sentence which they may then report more fully.

However, news reporting can also present a challenge to improving public understanding of how sentencing operates. The research commissioned by the Council on the perceptions of sentencing of sexual offences found that, overall, members of the public perceived that sentencing for these offences was too lenient and did not fully reflect the harm caused. For some, this was linked to media representations of the sentencing of these offences. However, when members of the public went through a scenario based on a real case, the sentence they proposed was similar to that passed by the judge. When told this, participants expressed surprise.[5]  Although this research focused on a specific type of offence, it reinforces other pieces of more general research.[6]

As part of the Council’s wider stakeholder engagement in relation to developing a guideline on sexual offences, we held a conference drawing on delegates from a wide variety of criminal justice, governmental, and third sector organisations.[7] Delegates were concerned that inaccuracies or gaps in media reporting, for example around the factors considered by the court, could contribute to public misunderstanding around sentencing. The conference report states that there can be significant public concern at what may sometimes appear to be a short sentence for such offences, and that this may partly be the result of a lack of understanding of the rationale for the decision, or the full implications of a sentence. For example, orders such as an order for lifelong restriction may not be well understood. It was noted that the use of language by the media can sensationalise cases, which may not present the facts in the exact way that they were presented to the court.

Another challenge exists around a certain lack of public understanding of the law both in general and in relation to offence-specific laws. An understanding of the relevant legislation is sometimes necessary to understand sentencing decisions fully. Research carried out on behalf of the Council showed that, overall, people did not have a clear understanding of how most sexual offences were defined, particularly the new offences introduced by the Sexual Offences (Scotland) Act 2009.[8] Other research showed that some people demonstrated confusion around the laws referenced in the ‘Sentencing young people’ guideline,[9] and that some people had a limited understanding of the legal landscape in relation to causing death by driving offences.[10] For example, the distinction between careless driving and dangerous driving was not always readily known.

An additional barrier may be a lack of public interest to seek sentencing information beyond the news headlines. Some people may scan a newspaper headline without reading the content of the article.[11] If the headline states that an offender has ‘walked free’ despite receiving a community sentence, or been ‘spared jail’, it may suggest to the reader that the sentence is lenient without that person seeking further explanation.

Aside from media coverage, authoritative online information may be provided. In this respect, in Scotland, a primary source for those seeking particular sentencing information is the Scottish Sentencing Council’s website. Analytics show that the website’s ‘About sentencing’ page is consistently the most popular on the site and is visited frequently throughout the day. This page includes information on the legislation surrounding sentencing, the different sentences available, when they can be used, and what they mean.

This is written content presented in an accessible manner. An explanatory video on how courts in Scotland make sentencing decisions, available on the Council’s YouTube channel, receives slightly less traffic but nevertheless attracts a steady volume of daily views.

Those who choose to follow the Council on social media are alerted to new online resources and this tends to contribute to both an increase in social media followers and spikes in website traffic. For example, a recent increase in Twitter followers coincided with the launch of videos developed by the Council to explain our most recently published guideline (on sentencing young people). The Council also provides resources to schools which are used in classrooms across Scotland to educate, in particular, Modern Studies pupils.

The public can access information about specific sentences via sentencing statements published on the Judiciary of Scotland website. Sentencing statements are published where the judge considers that there is public interest in doing so; the sentence is complicated; or the sentence has legal significance.

Information on sentencing is further available via decisions in appeals against sentence, which are published on the Scottish Courts and Tribunals website for both the High Court of Justiciary (Scotland’s highest criminal court) and the Sheriff Appeal Court (which deals with summary criminal appeals).

The Council shares links to sentencing statements and decisions in appeals against sentence on its social media accounts. However, many members of the public may be less likely to read sentencing statements and appeal decisions, due to their length and technical aspects, as compared to media reports.

Victims of crime and the relatives of deceased victims also have the right to receive certain information about cases in which the victims have been involved. This includes the right to request the disclosure of any reasons given for the sentence that the judge has imposed.

In order to connect with the public directly, the Council makes use of social media platforms and website resources. However, barriers also exist on both of these fronts. Challenges arise around acquiring a significant number of social media followers amidst the large volume of populist channels that operate globally. And it is not always straightforward to produce online resources which address complex and sometimes difficult sentencing issues in a simple and accessible way. For example, the Council showcased one of its educational videos to an outreach group serving a community consisting of a high percentage of people with offending experience. Although the video has been well received by many, including organisations within the justice and third sectors, and secondary school teachers, the outreach group advised that it was unlikely to be as accessible to their community, who might relate better to the personal stories of offenders rather than the factors considered by judges in sentencing.

Improving public understanding

The Council uses a number of approaches to improve public understanding of sentencing in Scotland, including the publication of sentencing guidelines, the ongoing development of online resources, and engagement with schools, interest groups and the media.

Our first three guidelines, which are general guidelines applying to all offences, are written in an accessible manner and clearly set out the principles and purposes of sentencing, the process judges go through when deciding sentences, the factors taken into account in sentencing, and issues of particular relevance to the sentencing of young people. Where helpful, we have included reference to the research relied upon in developing a guideline. For example, our Sentencing young people guideline defines a young person as someone who is under the age of 25 at the date of conviction. This age was set based upon extensive research around brain development and how it relates to maturity and culpability.[12] The main components of that research were explained in accessible language within the guideline in order to improve public understanding of why that age was selected, and why that age group is sentenced differently from adults.

We are now preparing offence guidelines which will clearly set out factors judges will take into account when deciding sentences for particular offences.

The Council accepts that some areas of sentencing appear to be less well understood than others, including community justice. In order to address this matter, the Council’s current business plan states that we will carry out activity designed to improve awareness of community-based sentencing options. This activity includes a series of blogs on some of the available community-based programmes, and the often challenging requirements placed on the offender to complete them. The Council also held a successful stakeholder discussion event about community justice, and will shortly publish a report on it. Further engagement includes identifying and participating in community events such as outreach programmes and Doors Open Days.

We collaborate with other justice and third sector organisations which work with particular interest groups. By raising awareness of our work within these groups through workshops, presentations, and training, we indirectly raise awareness amongst the public interest groups that they serve. We further target universities with criminology and law departments as well as school pupils, in particular Modern Studies classes. As indicated, we have recently created a series of short, animated videos explaining the basic elements of our Sentencing young people guideline. Like our other learning resources, these have been promoted by the Modern Studies Association and Education Scotland, receiving positive feedback. More recently, we have also engaged with the Scottish Council of Independent Schools. We are further engaging with Scottish law schools to provide an online resource designed for university and college students.

Another area which may increase public understanding and confidence in sentencing is the publication of related research. For example, the Council carried out a consultative exercise with sentencers across Scotland in relation to community-based disposals. Some judges stated that independent research demonstrating the effectiveness of community-based sentences and their contribution to reducing reoffending would be welcome.[13]

As discussed, some public perceptions of sentencing can be linked to media representations.[14] In order to address this matter, the Council secretariat has shared some of the research referenced in this consultation response with individual court reporters and news desk editors in order to raise awareness of the impact news reports and headlines can have on readers, such as those that describe an offender as being spared jail. We have engaged directly with some of the journalists around the use and impact of certain language. In response some reporters are explaining more fully the requirements of community sentencing and the reasons given by judges for their decisions. Some are also starting to depict a community sentence in a headline rather than rely on the more sensationalised ‘avoided jail’ approach.

Public confidence and how it can be measured

A lack of public understanding of sentencing can undermine confidence in the justice system. Research carried out on behalf of the Council includes nationally representative surveys which examined public perceptions of sentencing in general[15] and in sexual offences in particular[16]. They highlighted a lack of public knowledge of, and confidence in, community disposals. Public perceptions and understanding of what community disposals involve appear to focus on community justice as an alternative to imprisonment, with community payback orders often seen as a ‘soft option’.[17] It can be expected that some of the public’s general sense that community sentencing is soft or lenient[18] will lead to a feeling that justice is not being adequately served.

Conversely, various studies carried out on behalf of the Sentencing Council for England and Wales and, separately, on behalf of the Scottish Sentencing Council[19] indicate that, when presented with specific scenarios that include the factors and circumstances of a particular case, participants tend to agree overall with the sentencing decisions made by judges.

Research conducted on behalf of the Council shows that those with no formal qualifications tend to hold more negative and punitive views on sentencing in Scotland than those who hold school or college qualifications, or a degree or equivalent, and are more likely to think that sentences are too lenient.[20]

This research further indicates that around 48% of the public do not feel that community sentences help to reduce reoffending, while 40% feel that they are an effective means of reducing rates of reoffending. Those with a degree or equivalent tended to be more positive about community sentences with over half of this group (54%) stating that they felt community sentences did help to reduce reoffending, compared with one third of those with a school or college qualification (33%) and just under a third of those with no formal qualifications (30%).

Although some of this research may be similar to that undertaken in England and Wales, a report recently commissioned by the Scottish Sentencing Council indicates that methodological differences caution against any automatic comparison across the jurisdictions in relation to public opinions on sentencing.[21]

This form of targeted research, conducted in a structured and controlled manner, appears to provide a spotlight on public opinion in a manner which is consistent and reliable.

Public opinion informing sentencing policy

In developing guidelines, the Council engages with numerous interest groups, representing members of the public, and their views are very carefully considered and balanced against data, sentencing practice and research.

The Council conducts full, public consultations in respect of each of its guidelines which enables us to take stock of the opinions held by those individuals who proactively take part. We are grateful to all who respond and each submission is carefully considered. The consultations have resulted in changes to guidelines, especially in relation to transparency and informing public understanding: for example, the ‘Sentencing young people’ guideline was restructured to improve navigation and comprehension. However, caution needs to be exercised to ensure that the fundamental independence of the judiciary is preserved.

There are also times when consultation responses provide contrasting views. The consultation analysis of our ‘Sentencing young people’ guideline revealed that organisational responses showed a more in-depth awareness and understanding of current sentencing policy and practice, and the research and evidence base relating to the proposals, than some individual responses.[22] In some instances, the independent consultation analysis suggested that the views of individuals should be treated with caution due to apparent confusion about the statutory framework behind the provisions suggested in the draft guideline.[23] We believe that the apparent difference in views is indicative of a gap between the experience of organisations and professionals working in the justice sector and public perceptions and awareness of sentencing. In particular, responses from some individuals generally indicated a lower awareness of:

• what contributes to offending behaviour amongst young people and what might contribute to reducing reoffending
• the existing law as it applies to young people within the criminal justice system.

This highlights the complex nature of sentencing and the importance of our duty to promote greater awareness and understanding of sentencing policy and practice. Overall, organisations were generally very supportive of the draft guideline, and in particular welcomed its evidence-based, person-centred approach. While some individuals shared this view, individual responses in general diverged from organisational responses, with some strong opposition expressed to specific aspects of the draft guideline, such as the range of people to whom it should apply.

Conclusion

Public understanding is important to public confidence in sentencing. Structured and controlled studies may be the most reliable means to ascertain public opinion. Research suggests that overall the public has a perception that sentencing is lenient in general. However this perception is often dispelled when individuals are provided with the factors and circumstances of a specific case.

There are significant barriers to improving understanding amongst the public, but a variety of approaches may help to address this. Targeting interested members of the public is effective in reaching people who are open to learning more about sentencing such as law, criminology and justice social work students; Modern Studies pupils; and interest groups associated with third and justice sector organisations. Those who are not directly interested in learning more about sentencing may be influenced by mainstream and social media. To better reach this contingency, work with the media using an evidence-based approach may help to increase reporting around the full extent of sentences and the reasons for them.

The Council regards public consultation on draft guidelines as extremely important, but responses - particularly contrasting responses - need to be considered carefully, and weighed against evidence and research.

The Council is grateful for the opportunity to make this submission to the Justice Committee in relation to such an important topic, and would be happy to clarify any of the information provided if it would prove helpful.

July 2022