Lady Dorrian

The ‘Sentencing young people’ guideline, which will be submitted to the High Court for approval this month, requires courts to have regard to rehabilitation as a primary consideration in sentencing young people in recognition of their greater capacity for change.

The council considers that this will help to achieve one of the guideline’s key aims: to reduce reoffending among young people.

Views were invited on a draft guideline between spring and summer 2020. As part of the consultation exercise the council also:

• carried out direct engagement with victims’ and survivors’ organisations and with the Victims Organisations Collaboration Forum Scotland; and
• commissioned the University of the West of Scotland to carry out focus groups with young people aged 14-25 in order to obtain their views on sentencing and the issues addressed in the draft guideline

Views expressed in those discussions and focus groups, along with the responses to the consultation, have been taken into account in the final decisions about the content of the guideline. These include a number of improvements to the draft consulted on:

• The guideline has been restructured to make it clearer at which point courts should consider particular matters and why.
• It gives more clarity on how the impact on victims is to be taken in account.
• It provides clearer guidance on how the assessment of a young person’s maturity bears on culpability.
• It makes it clearer that while rehabilitation is a primary consideration when sentencing a young person, other purposes of sentencing, such as punishment and protection of the public, are also relevant.

The guideline highlights the need to take into account factors common to many young people who commit offences, such as experience of trauma, including traumatic bereavement, and high levels of adverse childhood experiences. It also makes it clear that the full range of sentencing options will remain open to courts when sentencing a young person.

There was overwhelming support for the draft guideline from organisations and individuals with experience of the criminal justice system. The consultation exercise has, however, highlighted that the legal framework surrounding young people who have offended and the issues relevant when sentencing them are not always well understood by those outwith the criminal justice system.

Lady Dorrian, Lord Justice Clerk and chair of the council, said: “The sentencing of young people is a complex and challenging exercise which requires a more individualistic approach, with a need to take the unique personal circumstances of the young person and their intellectual and emotional maturity into account. The guideline explains this and sets out the approach courts should adopt when carrying out that exercise.

“The views expressed in the consultation echo those expressed by members of the public in independent research that rehabilitation should be a primary consideration when sentencing a young person.

“The council’s hope and expectation is that through greater emphasis on rehabilitation, encouraging the use of review hearings, such as for those carrying out unpaid work, and increased use of the children’s hearings system for those under 18, the guideline will bring long-term social and economic benefits by promoting reduced reoffending.”

Subject to the High Court’s approval, the guideline will apply to the sentencing of all those under the age of 25 at the date of their plea of guilty or when a finding of guilt is made against them, a decision that the council based on compelling scientific evidence on the development of cognitive maturity.

Lady Dorrian added: “We are satisfied having commissioned independent research that there is sufficient evidence to adopt a different approach to sentencing for those under 25. We fully considered all the views expressed, including those which did not support this specific proposal.

“The weight of the evidence on brain development, together with how this can be affected by factors such as trauma or adverse childhood experiences, has persuaded us that a more individualistic approach to the sentencing of those under 25 is necessary and appropriate in order to support rehabilitation and help to reduce reoffending. Courts will consider these factors while also taking account of the harm caused to the victim, before arriving at an appropriate sentence.”

Defence solicitor Iain Smith said he thought the new guidelines represented “huge progress”.

He told the BBC that the proposals should not be seen as “soft” justice, but rather as “smart” justice because in the long term these changes would result in fewer people becoming victims of crime.

Judges would need training on the science of trauma but, he said, it would let them to see the same people in a different light.

Mr Smith added: “We can’t punish people out of trauma. We can’t punish people out of addiction.”