Top Scottish judges decry SNP plan for sentencing council

SCOTLAND’S two top judges yesterday spoke out against a plan to set up a body to draw up sentencing guidelines.

Lord Justice General Lord Hamilton and Lord Justice Clerk Lord Gill criticised the Scottish Government proposal for a sentencing council.

Lord Hamilton said the change will “strip” the High Court of some of its powers and could also “impinge upon the independence of the judiciary”. Lord Gill said the plan raised a “huge constitutional question”.

The government says the proposed council would provide guidelines which, once finalised, will have to be adhered to by all judges.

They may depart from the guidelines if the circumstances of a case warranted it – but judges would have to formally state their reasons.

The council would be chaired by the lord justice clerk but only a minority of its members would be judges.

However Lord Hamilton told MSPs on Holyrood’s justice committee: “I think a situation in which an outside body, which is not in itself an elected body and which comprises – as the present proposals indicate, of a majority of non-judicial office holders – does impinge upon the independence of the judiciary if it is going to lay down what are in effect prescriptive guidelines.”

North-east SNP MSP Nigel Don said politicians had a role to play in determining sentencing policy.

But Lord Hamilton told him: “Parliament is going to strip the High Court of Justiciary of powers it otherwise had and is going to pass on to a non-elected, non-judicial body the function which the High Court has exercised hitherto. That’s where I find particular difficulty.”

And he suggested that the proposal may not comply with the European Convention on Human Rights.

Lord Gill said: “There is a role in Scotland for a sentencing council – but it’s not this particular one.”

Both judges said that a sentencing council should be a research and advisory body.