Call to review test of undue leniency in sentencing appeals
Politicians in Scotland have a role to play in ensuring that the justice system meets the needs of victims, a Conservative MSP has said.
The comments were made by Liam Kerr during a Scottish Labour debate on sentencing guidelines at Holyrood on Wednesday.
It followed the sentencing of Christopher Daniel, 18, who was found guilty of repeated sexual assaults on a six-year-old girl but was granted an absolute discharge by Sheriff Gerard Sinclair for various reasons including his perceived emotional naivety.
The decision means that Daniel, who was between 15 and 17 at the time, will not be on the Sex Offenders’ Register or have any criminal record.
Prosecutors decided that the sentence could not be appealed by the Crown Office on the grounds of undue leniency because the case does not meet the high legal test required.
Mr Kerr has called for the Scottish Law Commission to review the test of ‘undue leniency’, suggesting that the Crown is restricted in its ability to appeal sentences.
“We all agree that politicians should not interfere with the independence of the Judiciary,” said the MSP.
“But politicians do set out the parameters for sentencing. Indeed, the SNP will shortly seek to implement a presumption against sentences of less than 12 months and thus it does accept that politicians have a role in how sentencing, and therefore appeals, operate.
“There is a role for polticians in ensuring our justice system meets the needs of victims and society, and it is crucial that victims understand and have faith in our system.
“We would be failing, surely, in our duty if when a perpetrator has walked free, having been found guilty of sexually assaulting a six-year-old girl, we do not empower the Scottish Law Commission to review whether the undue leniency test is overly restrictive.”
Labour justice spokesman Daniel Johnson said that the “justice system still has distance to travel in both consistency and transparency”.
The party has called for sentencing guidelines for sexual assault to be changed, particularly for young people.
Mr Johnson said: “How can it be fair or just to sentence someone on the basis of the life chances they have had to date.
“It can not be right that two individuals receive different sentences for the same crime because of whether or not they were lucky in the lottery of life.
“The reality is we have been discussing the need for sentencing guidelines for more than 25 years.
“In the three-and-a-half years since it was created, the Scottish Sentencing Council has only produced one guideline.
“Of course guidance on sentencing must not be rushed and must be subject to careful consideration and reflection, but I think it is right we ask questions as to whether this progress has been adequate.”
Justice Secretary Humza Yousaf stressed that the Scottish Sentencing Council (SSC) had a wider roll than just producing guidelines, adding it was also responsible for matters such as promoting greater awareness and understanding of sentencing policy.
He said: “One of the reasons why guidelines can take a bit of time to come to fruition is because public consultation is a key part of that.
“At the first meeting of the Sentencing Council it was determined that every single guideline they produce will then go to public consultation, so there is a consultation for guidelines as there would be for legislation.”
The Justice Secretary also spoke about the need for guidelines to be “right and not rushed”.