Friday, 9 November 2007

Sentencing guidelines: a new development?

Since 1995, the High Court has had the power to pronounce “sentencing guidelines” in appropriate cases, under section 118(7) of the Criminal Procedure (Scotland) Act 1995. However, the power does not appear to have been explicitly used until 2003, when the appeal court offered guidance on the appropriate discount for a plea of guilty (Du Plooy v HM Advocate 2005 JC 1) (although thanks to Fiona Leverick for pointing out that in Ogilvie v HM Advocate 2002 JC 74, the appeal court offered "sentencing guidelines" in respect of downloading indecent photographs of children from the internet without referring directly to section 118(7)).

Last week, the power was explicitly used for the first time in respect of a substantive offence. In Zhi Pen Lin v HM Advocate [2007] HCJAC 62, the court invoked section 118(7) in order to say (at para 13) that “the appropriate starting point for… "gardeners" involved in relatively large scale operations [of cultivating cannabis] will ordinarily be in the range of 4 to 5 years' imprisonment”.

Until relatively recently, that was a range of sentences open only to the High Court, but sheriffs' sentencing powers in solemn cases were increased from three to five years on the 1st May 2004. (This implemented section 13 of the Crime and Punishment (Scotland) Act 1997: it is not only section 118(7) which has had to wait some time for practical effect.) It may be that the vastly increased number of judges who can now impose relatively long sentences of imprisonment will encourage the appeal court to make more use of its power to issue sentencing guidelines.

That is not the justification offered directly by the appeal court in Zhi Pen Lin, which refers instead (at para 10) to “a degree of disparity, at least in the High Court, in the sentences so far pronounced on persons convicted of relatively minor involvement in such activity”. However, the fact that many future "gardening" prosecutions may take place in the Sheriff Court (see the examples given at para 9 in Zhi Pen Lin) means that it would be impossible to end such disparities by means of informal discussions between the relatively small number of High Court judges. Whether this means that more extensive use of section 118(7) can be expected in future remains to be seen.

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