CURRENTLY there are few fixed formulae in Scotland for calculating sentences. Those convicted of murder will receive a life sentence and a third offence of Class A drug trafficking means a mandatory sentence of seven years.
On the whole though, sentencing in Scotland is down to the discretion of the sheriff or judge sitting on the bench that day. It is the judge who has access to the greatest amount of information, including reports by psychologists and social workers and ultimately their independence from the state is a key tenet of democracy.
However, perennial accusations of inconsistency and lack of transparency have led to calls for guidelines which both public and perpetrator can understand.
It's not a new concept. The US has long used strict guidelines and, in some cases, intricate mathematical grids for calculating the most appropriate sentence.
Their reception has been mixed. Both the US and England and Wales have been accused of being over-zealous with the breadth and strictness of guidelines.
And research into the impact of 15 years of guideline sentencing in the US found that by 2002, 86% of all federal offenders received sentences of imprisonment, an increase of 20% compared to pre-guideline years.
If the net result is to increase the numbers in prison it may seem a strange choice for a Scottish Government currently trying to reduce the numbers behind bars.
"The key question which remains after looking at the consultation is whether the Scottish Government is going to be able to achieve its main objective of reducing the numbers of non-violent offenders in prison," said Cyrus Tata, director of the Centre for Sentencing Research at Strathclyde University. "It is quite possible that the introduction of guidelines could have the opposite result, but the devil will be in the detail."
As this is still a consultation, the detail is somewhat scant and it is not altogether clear how the new council would set guidelines on legislation which comes under Westminster's jurisdiction.
It could be Scottish Ministers seek to annexe further matters including the moot area of firearms law, especially in the wake of toddler Andrew Morton's killing by an airgun.
Sentencing remains devolved to Holyrood and the guidelines themselves would not be in statute, so it may be that in future the same offence could relate to a different penalty north and south of the border.
"An example might help with the issue of guidelines on reserved areas," said a Scottish Government spokesman. "On September 18 the offences of causing death by careless driving and by driving uninsured, unlicensed or disqualified came into force. These offences are contained in the Road Safety Act 2006 which is reserved. They came into force across the UK at the same time.
"The legislation contains a statutory maximum penalty but the Sentencing Guidelines Council issued guidelines intended for courts in England and Wales to help sentencers on what to take into account when deciding a penalty within that range. We envisage the Scottish Sentencing Council doing the same for Scottish courts."
It is possible that in future the sentencing councils north and south of the border could come to a different decision in relation to suitable sentences for firearms or airguns.
Last year, New Zealand introduced a sentencing council to draft both sentencing and parole guidelines. It is their example that Scotland plans to follow.
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