Meeting of the Parliament 27 February 2019
I welcome today’s justice debate. As members of society, we need to have the utmost confidence in our justice system and we need to continuously ensure that we have a credible and reliable system. How sentencing works in that system is crucial to fuelling public confidence, but right now confidence is in danger of being eroded.
The case at the forefront of my mind—and those of my colleagues—is that of the sentencing of Christopher Daniel. His conviction for the sexual assault of a six-year-old over a period of two years saw the bizarre decision made by the sentencing judge that the perpetrator need face no punishment nor have his name added to the sex offenders register. The immaturity, educational attainment and future prospects of the perpetrator were placed above a six-year-old victim’s right to justice.
Each case is of course unique and needs to be considered as such, but there is surely the question of what precedent the case sets for future offenders. We need to get sentencing right. It needs to be fair to perpetrators, but equally it needs to be fair to victims. The Christopher Daniel case has raised serious questions and concerns. More often than not, it is the victim who risks being damaged by the court’s process. It is surely in the interest of the victim, first and foremost, as well as that of the public, that such cases can go to appeal.
It is important to remember that judges hold the authority to sentence as they see fit. I do not question their experience and I acknowledge their advantage in listening to all the evidence in court, which informs their decision making. However, recent cases have raised the question of how possible it is to appeal under the law on undue leniency. If anything, instances such as the Christopher Daniel case suggest that the criteria for undue leniency should be reformed, as my colleague Liam Kerr mentioned. A sexual assault conviction that results in an absolute discharge is reason enough to explore the reform of a system that seems to present too many restrictions. Reform could be the door to having fairer outcomes that give just punishment to perpetrators while emphasising considerate care for victims.
Connected with that, the publication of sentencing guidelines would help make our justice system somewhat more dependable than it has been under the SNP Government. The establishment of the Scottish Sentencing Council in 2015 was most welcome, but more than three years have passed since its arrival and no extensive guidelines have yet been published. I understand that the research behind such guidelines needs to take into account many complexities, and that it must be done with care and robustness, but a delay in publishing the guidelines is concerning, as is the fact that they might not be finalised until 2021.
Such delays are only part of the reason why sentencing in our justice system so often lacks transparency and openness. Worryingly, it has become common practice for offenders to be granted early release into the community. Indeed, those who receive prison sentences of less than four years are released automatically halfway through their time. In many cases, those offenders live in the community without supervision. The frequency of those early releases fosters confusion about how effective our sentencing system is. Moreover, the community sentencing pathway, which often results in breaches of order, does no favours to restoring the belief of communities in our justice process.