Sentencing of Young People: What does the latest guideline mean for the Scottish criminal justice system?

The sentencing of young people in Scotland continually sparks a high level of controversy within Scots law. Whilst the severity of the offence is a major consideration in sentencing, the courts need to balance what is best for the individual and public safety. Along with this, there must be a focus on promoting the rehabilitation of the young person. To help courts with this decision, the Scottish Sentencing Council has finalised new guidelines for the sentencing of young people. This article answers common concerns with the new guidelines. 

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What are the ‘Sentencing Young People’ guidelines and who do they apply to?

The guidelines came into force in all Scottish Courts on 26th January 2022 and apply to anyone under the age of 25 at the date of their guilty plea or when a finding of guilt is made against them.

A young person is still to reach their full cognitive maturity, so they have a greater capacity for change than an older person. Due to this, the guidelines require the courts to primarily consider the offender’s rehabilitation. There is also an instruction to consider factors common to young offenders, such as traumatic and adverse childhood experiences. 

The focus on cognitive maturity and rehabilitation  

The latest guidance puts rehabilitation at the forefront of sentence decision making for young people in Scotland. Scientific evidence regarding cognitive maturity impacted this decision. Cognitive maturity, which is constructed within the brain throughout childhood to early adulthood, allows individuals to think in more complex ways and apply intellectual reasoning within everyday life when at full maturity. 

The process now focuses more on the individual and how they can be impacted by several factors, such as alcohol and substance abuse or a psychiatric disorder. The Scottish Sentencing Council aimed to recognise this in the guidelines by identifying that full cognitive maturity might not happen until someone is 25 years old. 

The importance of cognitive development

Cognitive development is important to the functioning of the judicial system as it ensures the individual can engage with the court process and know what impacts sentencing decisions. If the Court believes that cognitive maturation is not present, rehabilitation is required to ensure reoffending does not occur and the young person can be reintroduced to society. Additionally, the character of a young person is ever-changing; it could change for the better through this rehabilitation.

How is the most appropriate sentence identified? 

When sentencing a young person, the court must consider several different factors. First and foremost, the sentence imposed by the court must be fair and proportionate. Then the court will assess the seriousness of the offence by assessing the culpability and harm inflicted. The guidelines do not impact the court’s considerations for the level of harm inflicted on any victim. 

When evaluating culpability, the court will predominantly look to the offender’s maturity. The sentence imposed will consider the young person’s circumstances and recognise that particular sentences could have other adverse impacts on the young person. A custodial sentence is a last resort decision for the court, and if imposed, it should be shorter than that of an older person for a similar offence.  

Childhood experience and the impact on sentencing

The new guidelines focus on the individual, ensuring childhood experiences are taken into consideration during sentencing; specifically those which have harmed the young person's cognitive development. The courts will consider factors such as addiction, trauma, the young persons living environment, and upbringing when determining their sentence. The United Nations Convention on the Rights of the Child is also considered throughout the guidelines to ensure the young person’s rights are further protected in Scotland.  

Contact our Criminal Defence Lawyers in Edinburgh

If you would like to find out more about the Sentencing Young People guidelines in Scotland or require specific legal advice in line with the topic, please contact us today. Thorley Stephenson SSC’s criminal lawyers in Edinburgh aim to provide clients with a personal and professional service, with the best possible legal advice and representation on all criminal matters. 

Please contact us today on 0131 341 1667 or complete our online enquiry form to speak to one of our solicitors about your case.