High Court refuses Crown motion for guideline judgment on rape sentencing after issue raised in three sentence appeals

About this case:

• Citation:
  [2022] HCJAC 48
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lady Dorrian

It was argued by the Crown in all three cases that the sentences imposed were unduly lenient, and that in light of the greater understanding of the impact of partner violence on women’s health now was an opportune time for a guideline to be issued on sentencing, drawing on guidance issued in England and Wales, Ireland, and New Zealand.

The appeals were considered by the Lord Justice Clerk, Lady Dorrian, together with Lord Pentland and Lord Matthews. The Lord Advocate, Dorothy Bain KC, appeared for the Crown, D Findlay KC for the first and second respondents, and F Mackintosh KC for the third respondent.

Appreciable increase

LB, the first respondent, pled guilty to 11 charges against three separate complainers who had all at one time been his partner. The charges included 3 charges of rape, 3 of assault, and 4 charges relating to abusive behaviour. Each of the complainers spoke to loss of confidence and lack of trust in others resulting from LB’s treatment of them in their victim impact statements. The sentencing judge imposed a series of custodial sentences resulting in a cumulo custodial sentence of 45 months. The High Court allowed the appeal in the case of LB, having regard to the long pattern of abusive and controlling behaviour exercised against the complainers.

The second respondent, JI, was a self-employed man with no previous convictions. He was convicted of three offences against two former partners; one of indecent assault, one of assault, and one of rape, and sentenced to concurrent sentences of 3 years’ imprisonment for the indecent assault and 4 years in cumulo on the remaining charges. The High Court again allowed the appeal and imposed a new cumulo sentence of 8 years’ imprisonment.

The third respondent, JT, was convicted of 7 charges of rape against three complainers. He had relevant previous convictions including one for assault to injury, aggravated by being domestic in nature, in 2015. The judge imposed an extended sentence with a custodial part of 9 years and 6 months and an extension period of 3 years but discounted the custodial part to 5 years and 10 months as the respondent had been on remand for 1 year and 315 days. In this case, the High Court allowed the appeal only to the extent of again increasing the custodial part to 9 years and 6 months.

It was submitted for the Crown that in light of an appreciable increase in reported crimes of rape and attempted rape in Scotland, now was the time for the court to issue guidance reflective of the impact of sexual offending. It was suggested that sentencing models used in England and Wales, Ireland, and New Zealand for sexual offences could be useful comparators, and the offence of rape was sufficiently similar in definition to justify comparison.

Not made clear

Lady Dorrian, delivering the opinion of the court, observed generally: “The statistical evidence produced by the Crown here is sparse and the other evidence relied upon largely relates to comparative jurisdictions. The statistical evidence consisted of a table showing the mean sentence for all cases of rape over a ten year period. There was no attempt to break these statistics down, or to present cases comparatively by means of common features such as number of complainers; rape of domestic partners; a background of abusive and controlling behaviour; the use of physical force; planning; breach of trust; particular vulnerabilities; and other aggravating or mitigating factors so that the impact of these factors within the sentencing process might be identified.”

She continued: “The Crown has markedly failed to analyse trends and patterns in rape sentences, to categorise cases in a rational format, or to set out meaningful conclusions on current sentencing practice in this jurisdiction. The scope, content and terms of the guidance sought by the Crown have not been made clear. In particular, factors bearing on culpability, level of gravity, aggravating factors, degree of harm, and mitigation have not been identified, nor has there been an attempt to analyse how such issues are reflected in sentencing within this jurisdiction.”

On the utility of the available guidance from other jurisdictions, Lady Dorrian said: “Whilst it is undoubtedly the case that Guidelines issued in England and Wales may provide a useful cross-check, and they, and court decisions in that jurisdiction, may help illuminate specific aspects of sentencing and the impact thereof, that does not mean that these are therefore on their own a sound basis for the development of a guideline judgment in this jurisdiction. The true position is that the Scottish courts have extensive experience and collective knowledge of sentencing for this very commonly encountered offence.”

She concluded: “If there is to be any recalibration of sentencing in this area, the Scottish Sentencing Council is in a far stronger position than the court to engage in a robust comparative analysis drawing on appropriate methodology and scholarship. It is also in a position to conduct meaningful public consultation so as to provide a proper evidence base for its recommendations to the court. This is an important step in the process. The Council has a diverse membership reflecting an appropriate range of stakeholders. Any guidance which it produces is liable to be more reflective of society’s views than a single court judgment informed by a few cases, and to be based on actual research and consultation rather than impressionistic assessment.”

The court was therefore not persuaded that a guideline ought to be issued.