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Scottish Sentencing Council submission of 22 October 2021

PE1881/D: Longer sentences for paedophiles and sexual predators

Thank you for your letter dated 24 September 2021 inviting the Scottish Sentencing Council to provide an update to the Citizen Participation and Public Petitions Committee on the progress of work in developing sentencing guidelines in relation to rape, sexual assault, and indecent images of children.

It may assist the Committee to set out first the Council’s progress with development of the three general guidelines which will underpin all of the Council’s subsequent work, and then the history of the Council’s decision to develop sentencing guidelines on these sexual offences.

Background – development of general guidelines

The Council’s main focus in its 2015-18 and 2018-21 business plans was on the development of a suite of three general guidelines, on the principles and purposes of sentencing, the sentencing process, and the sentencing of young people. This was in order to create a high-level framework for sentencing in Scotland and provide a strong, principled foundation for the development of offence-specific sentencing guidelines in due course. The development of guidelines on sexual offences has therefore been largely dependent on the finalisation of these general guidelines, as indeed has been the case with the other offence guidelines the Council committed to develop in its 2018-21 business plan, on statutory offences of causing death by driving and environmental and wildlife offences.

The Council has now finalised all of the three general guidelines mentioned above, all of which will apply to the sentencing of sexual offences.

The first of these general guidelines, and indeed the Council’s first guideline overall, ‘Principles and purposes of sentencing’, came into effect on 26 November 2018.

‘The sentencing process’ guideline, which came into effect on 22 September 2021, sets out an eight-step process for reaching sentencing decisions. As its structure will inform the shape of the Council’s offence guidelines, its finalisation therefore allows iterative drafting of the rape, sexual assault, and indecent images of children guidelines to gather pace.

The sentencing young people guideline was submitted to the High Court for approval in September and will be considered at a hearing on 09 November 2021 (each of the Council’s guidelines can only take effect if approved by the High Court). Subject to the Court’s approval, this guideline will apply to the sentencing of all offences – including sexual offences – where the offender is a young person, which for the purposes of the guideline is someone under the age of 25 at the time of a plea or finding of guilt. Children and young people are, sadly, often involved in cases of sexual offending: directly as either perpetrator or victim, or indirectly, as witnesses. The finalisation of this guideline means that the Council is now able to give consideration as to how it should interact with sexual offences guidelines.

Commitment to consider and develop guidelines on sexual offences

In its first business plan, covering the period 2015-18, the Council announced that it would begin research into the sentencing of sexual offences. The Council recognised that sexual offending:

“has increasingly become an area of public concern in recent years and accounts for a high proportion of sentences, particularly in the High Court. In addition, the circumstances in sexual offence cases are often complex, which can lead to difficult sentencing decisions. Sexual offending covers a wide range of offences and sentencing options and we will give careful consideration to the scope of this research and whether we should give particular focus to specific areas. This research will help us to decide whether a guideline on sexual offences should be prepared.” – page 29

As a key part of its preparatory research into sexual offences, the Council held a stakeholder conference in June 2018, which sought views from a wide variety of criminal justice, governmental, and third sector organisations and individuals with experience and expertise in the sentencing of sexual offences.

The Council thereafter committed to developing guidelines on sexual offences in its 2018-21 business plan, although the focus of this was initially on determining the precise scope of the guidelines following the feedback received at the conference.

In May 2019, the Council announced that it had decided to develop multiple guidelines focusing on particular sexual offences, rather than a single guideline covering all offences, starting with guidelines in relation to rape, sexual assault, and indecent images of children. This decision was made in recognition of the considerable public interest in the sentencing of sexual offences, and having taken account of the views of key stakeholders. It was also decided that guidelines on sexual offences should take precedence over certain other areas of work. For this reason the Council agreed to defer development of its planned guideline on environmental and wildlife crime in order to prioritise the sexual offences guidelines.

Following on from that announcement, the Council established a working group committee on sexual offences – known as the Sexual Offences Committee – in August 2019 to oversee the development of all three guidelines.

Progress of work in developing sentencing guidelines on rape, sexual assault, and indecent images of children

In terms of the guideline development methodology developed by the Council, work on the development of guidelines on rape, sexual assault, and indecent images of children is now at ‘Stage 2 – Development of a draft guideline’.

The Council is committed to taking an evidence-based approach to guideline development, involving appropriate levels of research and consultation, in order to ensure that guidelines meet the aims set for them and to assess fully their likely effects on the criminal justice system. Accordingly, the focus of work during this stage is on engaging with key stakeholders, gathering evidence, and developing a first draft of each guideline.

Although the work carried out under the auspices of the Sexual Offences Committee has been disrupted by the COVID-19 pandemic, good progress has nevertheless been made. The work undertaken to date is summarised below:

Literature reviews on the offences of rape and sexual assault were published in February 2021. These reviewed the information available on the sentencing of these offences in Scotland, as well as looking at other jurisdictions.

A report on research into public perceptions of sentencing for sexual offences was published in July 2021. This examined awareness and understanding of sexual offences among the public, views on the factors which should be taken into account when sentencing, and perceptions of current practice, including a sentencing exercise using a real world case. It also included interviews with survivors. (A national survey report on public perceptions of sentencing published by the Council in 2019 also included public perceptions of sentencing for offences of rape, historical sexual assault and possession of indecent images of children.)

Data-gathering and case analysis exercises in relation to sexual offences have been conducted by the Council’s secretariat.

Research and engagement with sentencers has been carried out.

A literature review of the sentencing of offences relating to indecent images of children will shortly be commissioned. It is also intended to undertake a research project that will seek the views of survivors of rape and sexual assault.

It has recently been decided that the scope of the Council’s work on the rape offences guideline should include the offence of rape of a young child and that stakeholder engagement on this guideline should now get underway.

Finalisation of sentencing guidelines on rape, sexual assault, and indecent images of children

While development of the guidelines on rape, sexual assault, and indecent images of children is being carried out expeditiously, the Council is not yet in a position to set a definitive timescale for their finalisation for submission to the High Court. The Council’s aim is to complete each of these guidelines during the 2021-24 business planning period, with the caveat that it expects a significant amount of resource will be required to deliver a sexual assault guideline within the period, the offence covering such a broad range of behaviour.

The development of sentencing guidelines is not unlike the development of legislation in terms of the level of research and consultation required. This is not a process that can be rushed, as the impact of proposing guidelines which have not been properly considered and tested would be considerable. Even small changes in sentencing practice could have significant consequences, both for those involved in individual cases and for the criminal justice system as a whole.