Friday, October 23, 2015

Quango Law: Scottish Sentencing Council established after two top judges condemn Ministers sentencing quango as an 'attempt to undermine independence of the judiciary'

Judges must now give nod to quango on sentencing. SIX YEARS after proposals to create a Scottish Sentencing Council (SSC) were condemned by Scotland's longest serving judge as a "quango" - with constitutional issues, the sentencing body has finally been established by the Scottish Government, with a brief to “raise public awareness and understanding of sentencing practice”.

The ‘arms length’ body – which some fear may begin to interfere with sentencing on a case by case basis, is headed by the Lord Justice Clerk - Lord Carloway.

Carloway previously backed the Scottish Government’s ‘unfinished plan’ to remove the long held safeguard of corroboration – where evidence in a criminal trial is required from two separate sources for a conviction.

Earlier this week, legal insiders told SLR it was revealing the sentencing council has only came into being after the retirement of Lord Gill from the post of Lord President, earlier this year.

Gill, who was opposed to the Scottish Government’s plan to create a quango style sentencing council retired in May 2015.

It is thought Gill remained opposed to the idea of political meddling in sentencing to the end of his term as Lord President.

Welcoming the establishment of the Sentencing Council, Justice Secretary Michael Matheson said: “The creation of the Scottish Sentencing Council is extremely important for the criminal justice system in Scotland and I welcome today’s official launch. We know that sentencing can be an extremely complicated and emotive issue which is why we want to provide greater clarity and openness around why and how sentences are decided.

Matheson also claimed, unconvincingly, the courts would remain independent of ministers desires for sentencing headlines to suit the Scottish Government’s policy of cooking the books on crime statistics & convictions.

The Justice Secretary said: “While the independence of Scotland’s judiciary of course remains a fundamental part of the Scottish legal system, as does judicial discretion in individual sentencing decisions, the Council will help to ensure transparency and consistency in all sentencing decisions made in Scotland, as well as helping the public better understand the sentencing process.”

However, legal insiders say the sentencing quango is little more than thinly veiled political meddling in matters constitutionally reserved to the courts.

Both of Scotland’s previous Lord Presidents have publicly criticised the sentencing council since proposals were first made in 2009 as part of the The Criminal Justice and Licensing (Scotland) Act 2010.

During evidence heard at the Scottish Parliament’s Justice Committee in 2009, Lord Brian Gill – in his role as Lord Justice Clerk criticised the sentencing plan,  branding the Scottish Government’s proposal to create a sentencing council as muddled legislation interfering with the sentencing duties of the courts.

Lord Gill said: I am slightly troubled by the term "inconsistency". Forgive me for going back to a slightly earlier point, but it relates to the point that has just been raised with the Lord Justice General.

If the legislation sets out to achieve what is described as consistency, it seems essential that it should define what it means by consistency and inconsistency. The consultation paper started off by talking about inconsistency and then spoke about a perception of inconsistency, which is rather a different thing. It is not quite clear yet what the legislation seeks to achieve. There is no definition of consistency in the draft, and it seems to me that those who would form a sentencing council would find some difficulty in knowing exactly what they were trying to do unless the legislation gave them a clear definition by which to judge their own views and decisions.

That raises in a clear way the constitutional issue that underlies legislation. It is part of the constitution that it is for the appeal court to determine sentencing, except to the extent that legislation lays down what the sentence should be. To read the bill, one might think that it involved merely the creation of some quango but, in fact, there is a huge constitutional question underlying the bill. That is what troubles me."

The Justice Committee also heard from the then Lord President – Lord Hamilton – who accused the Scottish Government of putting forward proposals to undermine the independence of the judiciary.

The current complement of the Scottish Sentencing Council includes 12 members selected by the Scottish Government are:

Lord Carloway (Lord Justice Clerk, Council Chair), Lord Turnbull (Senator Member), Sheriff Principal Ian R. Abercrombie QC (Sheriff Principal Member), Sheriff Norman McFadyen (Sheriff Member), Allan Findlay (Stipendiary Magistrate Member), Gillian Thomson (Justice of the Peace Member), Catherine Dyer (Crown Agent, Prosecutor Member), Stephen O’Rourke (Advocate Member), John Scott QC (Solicitor Member), Val Thomson (Assistant Chief Constable, Constable Member), Sue Moody (Lay Member with knowledge of victims’ issues), Professor Neil Hutton (Lay Member),

Sentencing quango member, Sue Moody, who has knowledge of victims’ issues, said: “I am delighted to be part of the new Sentencing Council. The Council is good news for the victims of crime in Scotland. It will help to demystify sentencing for the public, and will ensure that the interests and needs of victims are taken into account when sentencing guidelines are prepared. This is an important opportunity for victims to contribute their views.”

Chair of the Scottish Sentencing Council Lord Carloway said: “Sentencing is much more complex than it sometimes appears - there can be many different factors involved. The Council will work to raise awareness and understanding of sentencing practice - not only for our justice partners but for the wider public - helping to build confidence in our justice system. I expect the Council to take Scotland into a new era, in which we pursue a more principled approach to sentencing with improved consistency. This will be at the heart of our programme.”

The Scottish Sentencing Council will also:

help develop sentencing policy
conduct research into sentencing practice
publish information about sentences
provide general advice and guidance on sentencing
publish guideline judgments. (These are court opinions which provide guidance on sentences in similar cases)
The High Court, new Sheriff Appeal Court and Scottish ministers can request the Council to prepare or review sentencing guidelines on any matter.

Every three years the Council must prepare and submit a three year business plan to the Scottish Ministers, after consulting the Ministers, the Lord Advocate, the Lord Justice General, and any other people it considers appropriate.

The Council must also prepare and submit an annual report on its activities to Ministers.  The business plan and annual report are then laid before the Scottish Parliament.

A launch event for the sentencing council will take place on 17 November. Lord Carloway, the Lord Justice Clerk and Chair of the Council, and Mr Michael Matheson, Cabinet Secretary for Justice, will speak at the event.

Members of the judiciary, justice partners and other stakeholders have been invited to attend, and further spaces may become available nearer the time. Those involved in the justice system who would like to be added to the waiting list, should contact

Carloway & Corroboration:

Earlier this year, Lord Carloway – who authored Carloway Review Report & Recommendations 2011 -  essentially backing up Ministers plans to remove corroboration - was criticised by lawyers after the judge accused the legal profession of opposing the removal of corroboration on the basis of financial greed.

Lord Carloway said in a speech at a conference of Commonwealth Law Reform Agencies in Edinburgh that his proposals to abolish corroboration has been met with “real hostility” from some lawyers.

He suggested in his speech that some of this ire came from lawyers who had a financial interest in retaining corroboration.

Lord Carloway said: “Reactionary or excessively defensive forces among the legal profession can, and often do, behave in a manner obstructive to progressive law reform, especially where there is transparent perceived financial self-interest.”

However, the remainder of the judiciary demanded corroboration be retained.

In October 2013, Scotland’s top judge Lord Brian Gill – who opposed the removal of corroboration, gave evidence to the Justice Committee, reported HERE, defining corroboration as one of the "finest features" of Scotland’s justice system.

And, Judges of the High Court of Justiciary opposed Carloway on the removal of corroboration, signing a petition against it, available here: Response by the Senators of the College of Justice to SG consultation : Reforming Scots Criminal Law & Practice .

Scottish Law Reporter previously reported on the Scottish Government's plans to remove corroboration from Scots Law, HERE

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