‘Sentencing Young People’ Guideline

The Scottish Sentencing Council recently published a new guideline which came into effect last week regarding the sentencing of young people (under the age of 25 years). In developing the guideline, the Council commissioned independent research and consulted with victims of crime and young people.

Relevance of adversity and trauma in the Guideline

The guideline recommends that the courts seek information to inform their sentencing decision. This may include reports about trauma, adverse childhood experiences (ACEs), whether the sentence is likely to be able to be implemented and what might increase the effectiveness of the sentence [para 15].

The guidelines promote individualised sentencing [17] as well as trauma-informed court practices, recommending that the court ensure that the sentence is clearly explained to the young person [19].

The guideline can be accessed here: https://www.scottishsentencingcouncil.org.uk/media/2171/sentencing-young-people-guideline-for-publication.pdf

The importance of consultation

The Council received 280 submissions in response to its 22-question survey, from individuals and organisations, and sought additional feedback through focus groups, commissioned research, and a stakeholder conference.

In response to consultation, the Council agreed that harm to victims is central to sentencing and the guideline does not undermine this (rather victims’ rights are highlighted in the more general sentencing guideline which is to be read in conjunction with ‘Sentencing Young People’).

The consultation highlighted the lack of general understanding of evidence-based sentencing and the applicable laws held by individuals, and the importance of public education. The consultation was also the reason for ‘trauma’ being added to the list of issues to be considered by sentencing judges. ‘Respondents (mainly organisations) often saw [adversity and trauma] as the crucial factor, pointing out the strong association with subsequent offending’ [16].

Reports regarding the public consultation can be accessed here: https://www.scottishsentencingcouncil.org.uk/media/2133/sentencing-young-people-consultation-analysis.pdf


Scottish and Australian laws

There is a notable difference between Australian and Scottish laws. As stated by the Scottish Sentencing Council:

Scottish law provides that: a child is defined as someone who is under 16; children under 12 years old cannot be prosecuted; children over 12 and under 16 who have committed an offence can be dealt with in either the children’s hearings system or the criminal justice system; 20 there is a presumption against imposing a custodial sentence on anyone under 21; and under 21s cannot be sent to an adult prison. [58]  

In Australia, advocates are currently arguing to raise the age. Unlike Scotland, children from the age of 10 can be held criminally responsible, and young people aged 18 to 21 can be held in adult prisons (with some differences between states regarding the incarceration of young adults).  

Despite this significant difference, there is a lot Australia could learn from this guideline, that fits with the Australian legal frameworks across our states and territories.

Leave a Reply

Your email address will not be published. Required fields are marked *