Lady Dorrian Review Governance Group: Specialist Sexual Offences Court Working Group Report

Part 4: sentencing powers of the New Court

The Lady Dorrian Review recommended that the New Court should have a sentencing power of 10 years imprisonment with provision for remit of the issue of sentencing to the High Court to a bench of 2 or 3, in those rare cases in which a higher sentence might be appropriate. In reaching that conclusion it took cognisance of the constitutional and structural issues that would arise if the New Court was given sentencing powers equivalent to those of the High Court, particularly the potential uncertainty it could cause to the understanding of the High Court's status as Scotland's Supreme Criminal Court; while importantly considering sentencing figures for the four year period 2016 to 2019. Those figures suggested that a sentencing power of 10 years would capture more than 95% of sexual offences on indictment in the High Court; with 12 years capturing about 98% of cases; and those over 12 years were very rare save where there are other features of the case such as abduction, attempted murder or murder which were to be expressly excluded from the jurisdiction of the New Court as it recommended.

At the outset of discussions some members of the Group, who had also been members of the Lady Dorrian Group, felt that on further examination and reflection they could no longer support the 10 year recommended limit. Reference was made to the fact that the Review had accepted when making its recommendation that sentencing powers for the New Court was a sensitive issue with legal, constitutional, structural and policy implications, and was something which may require further consideration and consultation before commencement of the New Court. The Group therefore had locus to give such further consideration to the topic in the circumstances.

Some favoured an unlimited sentencing power to prevent perceptions of a two-tiered system between the New Court and the High Court, and to give it the status and gravitas it was felt it deserved. Things had moved on since the Review Report was published and further data of pertinence was available and supported further review. The practical experience of some practitioner members of the Group was that serious violent domestic abuse cases often carried sentences above 10 years. It was important in their view that these cases were captured by the New Court too. Recent reported cases were also referenced. One example involved a multiple sexual charges indictment concerning more than 40 complainers, which had ultimately warranted a sentence of 12 years^[4]. Members of the Group initially against the prospect of making a change to the limit highlighted that there was perhaps a misunderstanding or conflation between the sentence limit and the ability for the New Court to preside over serious sexual offences and how it applied. It was a limit per charge not collectively. The only thing the principle of remit impacted on was that the New Court would not determine the ultimate sentence, but remit that to the High Court. The case would still call before the New Court. It was also important to note that the Lady Dorrian Review had identified that the present unlimited sentencing power of the High Court had not prevented the need for the Review; and that sentencing should not be the sole determinative factor for establishing a court.

To help inform its discussions further the Group considered three alternative options to the recommended limit, namely:

• the option to extend the limit to 12 years to allow for the 98% of cases referenced by the Review to be captured by the New Court without the need for remit to the High Court. This in principle would also capture the cases referenced in the Group's discussions
• The option of unlimited custodial sentencing powers with the exception that in circumstances where consideration of, or an OLR was intended such matters would be remitted to the High Court for sentencing
• a general unlimited sentencing power covering OLRs

During discussions COPFS shared details of an unpublished internal analysis of rape only cases for the 2017 to 2021 and their related outcomes. It was acknowledged by the Group that while the scope, type of case and period of analysis likely differed from that before the Lady Dorrian Review Group preventing a direct comparison, it was nonetheless informative and of assistance to its considerations and discussions. The analysis showed that out of 353 convictions 63 or c18% had sentences of over 10 years. Meaning that if these cases had fallen within the jurisdiction of the New Court a remit for sentencing would have been needed. Such a figure was not negligible.

Ultimately the Group supported the extension of the sentencing powers to that of an unlimited custodial nature. The driving factors for that conclusion being the alternative data provided by COPFS, recent case examples, and the experience of practitioner members. While the constitutional issues and concerns raised by the Lady Dorrian Review report were not negligible the Group were of the view that they should not be preventative to progression. They would just have to be considered by the Justice Sector overall in future consultation on introduction of the legislation to support the New Court. One additional perceived advantage was that the need to create procedures and practices to support a remit fell away, allowing the focusing of resources on the conduct and other aspects of the New Court.

There was ultimately majority support for the New Court to also have authority to impose OLRs within that unlimited sentencing power. The concern of those who opposed its inclusion was that it was a significant order, only available to those presiding in the High Court presently; and national published statistics^[5] indicated that they were used sparingly; thus a remit to the High Court may not therefore be too onerous to address.

Ultimately the Group was not of the view that giving the specialist court unlimited sentencing powers as well as the ability to impose OLRs undermined the primacy of the High Court. Many felt it did the opposite. It was important to note that the New Court was a court of first instance only and the power to hear appeals of its decisions would still sit with the High Court sitting as an appeal court; thus ensuring it retained its role as Scotland's superior criminal court. While it was acknowledged that its recommendation would require a notable extension to the existing sentencing powers of sheriffs when sitting in the New Court; it was felt by many in the Group that the critical matter of importance should in fact be the experience and training of the individual judge rather than whether they were a senator or a sheriff. The Group remained persuaded that, as the Lady Dorrian Review recommended, the Lord President (Lord Justice General) was best placed to set any training requirements and determine the ultimate appointment to the New Court. This being consistent with his responsibilities for making arrangements in respect of the training and education of Scotland's judiciary in accordance with section 2 of the Judiciary and Courts (Scotland) Act 2008. It was suggested that such training could perhaps include additional detailed training and discussion and reflection on the use of sentencing powers, particularly given some members of the court would receive a notable increase in powers.

Potential for increases in sentence length for accused

Some members raised significant concerns that the creation of the New Court with unlimited sentencing powers hearing cases, some of which, would previously have been heard in the sheriff court before sheriffs with limited sentencing powers of 5 years, created the potential for sentences to invariably increase. This is what is commonly known by the term 'sentence creep'. The requirement for a sheriff to remit to the High Court, if they felt their powers were insufficient would no longer apply in the model recommended. This concern required to be considered and addressed to ensure the rights of the accused were protected. The Group accordingly gave consideration from a practical and legal perspective to what could be done or what safeguards were or could be introduced to address such perceived concerns, irrespective of their potential eventuality. As noted above, it was felt that the additional training required of judges to appear before the New Court could include the use of sentencing powers to address such concerns. They also felt that it should not be forgotten that statutory limits for particular offences, many of which related to matters traditionally before the sheriff court would still remain for all judges. One important feature from the Group's perspective to address such concerns, anecdotal or otherwise, was an accused's right in law to appeal sentence under section 106 of the Criminal procedure (Scotland) Act 1995 (1995 Act). The proposed model had not sought to remove this, and it was essential that this remained the case. Furthermore the Group was of the view that the development of sentencing guidelines by the Scottish Sentencing Council, and their ultimate implementation by judges and subsequent review and evaluation would be of great assistance in sentencing of sexual offences generally, and addressing the concerns raised. It was understood that the development of guidelines covering the sexual offences of rape, indecent images of children, and sexual assault was already in train by the Council,^[6] and their progression was therefore welcomed.

Sentencing powers of the new court recommendations

The Working Group recommends that the National Specialist Sexual Offences court to be implemented should subject to any derogations or otherwise exceptions in law have an unlimited sentencing power which includes the right to make orders for life long restriction.