Chamber and committees

Scottish Sentencing Council submission of 3 December 2021

PE1887/D - Create an Unborn Victims of Violence Act

One of the Council’s statutory objectives is to seek to assist the development of policy in relation to sentencing, including by providing views, where appropriate, on proposals for legislative change. However, to date it has only tended to do so either where such proposals are at a more advanced stage (for example, where a public consultation is underway or a Bill is being scrutinised by Parliament and an assessment of the basis for, and impact of, the proposals is available); or where it has carried out research on the issue in question and has reached an informed view based on this.

The Council announced on 23 November 2021 that it intends to prepare a sentencing guideline on domestic abuse as part of its business plan for 2021-24. It has therefore yet to undertake any detailed research and engagement on this subject, and has not considered the specific issues raised by the petitioner. For that reason, the Council does not offer any comment on the merits of the proposal made in this petition.

The Council has long recognised that domestic abuse offending is a matter of significant public concern and considers that guidance on sentencing for these offences would help to provide transparency for the public and the families involved in these cases, as well being helpful to the courts.

However, it decided not to commence development of a guideline before now for two reasons. First, the Council wished to wait until the new offence of domestic abuse introduced by the Domestic Abuse (Scotland) Act 2018 had been in force for a period of time. This was to enable data on sentencing practice in relation to the new offence to become available for analysis.

Second, the main focus of the Council’s work to date has been on the creation of a suite of three general sentencing guidelines which will form a high level framework for sentencing decisions in Scotland. These three general guidelines, on the principles and purposes of sentencing, the sentencing process, and sentencing young people, have all now been finalised, with the first two currently being in force and the third due to take effect from 26 January 2022/ https://www.scottishsentencingcouncil.org.uk/sentencing-guidelines/approved-guidelines/

This means the Council is now able to turn its focus to sentencing guidelines on specific offences, including domestic abuse, in respect of which a committee has recently been established to oversee the development of a draft guideline. A range of work will be carried out under the auspices of this committee, likely including the following activities:

• Data gathering, including analysis of detailed court statistics on sentences passed and offender demographics.
• A literature review summarising existing academic, legal and statistical work on the new offence and the existing domestic abuse statutory aggravation.
• Interviews with the judiciary to establish current practice and challenges in sentencing.
• Research into public perceptions of sentencing for domestic abuse offences.

The Council notes that the Scottish Government’s submission to the Committee on this petition dated 23 August 2021 sets out the current legislative framework around domestic abuse offences, including the relevant laws which may apply where perpetrators cause the loss of an unborn child through their violent actions or coercive control.

The Council considers that there is nothing that necessarily precludes the loss of an unborn child caused by violent actions or coercive control from being libelled as part of an offence or from being considered by a judge or sheriff as a factor in a sentencing decision. In particular the Council draws attention to the terms of its guideline on the sentencing process, which has been in force since 22 September 2021, and which applies to the sentencing of all offences. This provides that the first step in any sentencing decision is an assessment of the seriousness of the offence before the court, which requires consideration of the levels of culpability and harm involved. Harm includes the impact on any victim or victims, is not limited to physical harm, and is to be interpreted broadly.