Sentencing Council condemned by Lord Hamilton at Holyrood Justice Committee

Justice Secretary Kenny MacAskill’s plans to create a new ‘Sentencing Council’ to recommend the length of sentences to Scotland’s judges have come in for a bit of a bashing from the Lord President, Lord Hamilton, the Lord Justice Clerk, Lord Gill, and a few others.

The Herald reports :

Judges condemn ‘flawed’ new justice bill

ROBBIE DINWOODIE, Chief Scottish Political Correspondent

May 13 2009

The head of Scotland's judicial system, Lord Hamilton, yesterday accused ministers of "putting the cart before the horse" by looking to create a new Sentencing Council before establishing if there was currently a problem with inconsistent disposals by judges and sheriffs.

The Lord President, the country's most senior judge, told the Justice Committee at Holyrood that the Criminal Justice and Licensing (Scotland) Bill was flawed in its attempt to create a Sentencing Commission that would lay down guidelines.

He argued that such a body should comprise a majority of judges, sheriffs and justices; should have only an advisory role to the Court of Criminal Appeal, which should retain the formal power to issue guidelines; and should be primarily a body conducting research into current sentencing practice.

"There is no empirical evidence that there is any inconsistency of sentencing," said Lord Hamilton, who said setting up a £1m body before any such proof had been found was "putting the cart before the horse."

The submission on behalf of all judges argued that the bill undermined judicial independence, stating: "Whatever may be asserted about the residual discretion of individual judicial office holders when passing particular sentences, the bill's proposals strike directly at the independence of the judiciary (and in particular the High Court) as the arm of government essentially responsible for the setting of sentencing policy.

"The proposals (as framed) are fundamentally unacceptable both on domestic constitutional grounds and because mandatory directions to the court by a non-judicial body undermine the judicial independence required of courts by Article 6 of the European Convention on Fundamental Rights and Freedoms."

Sheriffs were no more enthusiastic about the proposals, with the Sheriffs' Association being highly critical of the proposal to make the Bench offer an explanation before handing down any sentence of less than six months.

Its submission said critics who argue that short sentences are ineffective and that prisons can do little for short-term inmates are missing the point.

Committee convener Bill Aitken, who is Tory justice spokesman, said after the meeting: "Kenny MacAskill's proposals have been demolished by those who best know the legal system in scathing terms.

"He is completely out of touch with reality."