Scotland’s sentencing nightmare

Not content with putting trans rapists in women’s prisons the Scottish government is now accused of keeping heterosexual rapists out of prison altogether. A furious row has broken out after 21-year-old Sean Hogg was given a community payback sentence by a Scottish judge after being found guilty of raping a 13-year-old girl in a country park in 2018.

What does the SNP have against women? cried rape victims. JK Rowling reached for her keyboard to condemn ‘progressive Scotland’ for failing to protect women’s safety. ‘Young Scottish men’, she told her 14 million followers on Twitter , ‘are effectively being told “first time’s free.”’ Actually, in theory, they could do it any number of times before they’re 25. Under new Scottish government-approved sentencing guidelines the presumption is that, ideally, no one under that age should be sent to prison because their brains haven’t matured.

The ruling has also created a storm in the normally cloistered world of Scots law. The Dean of the Faculty of Advocates, Roddy Dunlop KC, agreed with other advocates in describing the decision by the judge, Lord Lake, not to imprison Hogg as ‘very unusual’ and ‘extraordinary’. That is Scottish legal speak for ‘WTF!’ The crime of rape usually leads to a lengthy custodial sentence no matter the age of the offender.

So how could a 21 year old man possibly be given the equivalent of a slap on the wrist for such a heinous crime? Has Scotland become a tolerance zone not only for Class A drugs (police are no longer required to prosecute people for possession of heroin and crack for personal use here) but for sex crime as well? Not exactly. This bizarre situation has arisen from those good intentions which so often pave the path to perdition.

It is conventional wisdom amongst activist judges and criminologists that prison doesn’t work. It generally propels young people into a lifetime of repeat offending and incarceration. Prisons, in the view of legal reformers, are simply universities of crime. It is costly too. Scotland incarcerates twice as many offenders as countries like Finland.

So, last year the Scottish Sentencing Council adopted new guidelines designed to keep young people out of jail wherever possible. The council said its decision to place the cut off for the guidelines at 25 was based on scientific evidence that the brain is ‘not fully developed below that age’. This was from research by Edinburgh University into the psychology of recidivism. Unfortunately, no one stopped to think how Scottish voters might react to this supposedly enlightened policy.

To most people the idea of letting 24-year-old muggers, drug dealers and rapists off with non-custodial sentences because their brains haven’t matured is simply soft in the head. The guidelines focused on rehabilitation to the exclusion of the other function of justice which is punishment. The parents of 13-year-old rape victims understandably think the penalty for such a hideous crime should rather more severe than cleaning graffiti off walls. 

It was a classic case of reforming zeal getting ahead of public opinion. There was actually a consultation on the proposals in 2020 which makes fascinating reading. While many supported the drive towards rehabilitation rather than prison, fully 71 per cent of respondents (81 per cent of individuals) opposed the idea of setting the sentencing guidelines as high as 25 on the not unreasonable grounds that offenders at that age are legally adult. But since they were just ordinary people, who didn’t understand the ‘neurological and criminological evidence’ their views were rejected by the Sentencing Council in favour of the views of third sector organisations and bodies representing the legal profession. As with Self-ID for trans people, advocacy research won the day over public opinion.

The First Minister, Humza Yousaf is insisting that none of this has anything to do with the Scottish government. We just work here guv. The Scottish Sentencing Council is indeed an independent body. Judges are a law unto themselves. And this is all well and good. We don’t want ministers deciding prison sentences. The judiciary is and should be above politics.

However, the Scottish government is in overall charge of justice and so cannot escape Scot free. Nicola Sturgeon did approve the new guidelines last year, and the government is collectively responsible for what has happened. Had it objected strongly enough, says the Scottish Tory Justice spokesman Jamie Green MSP, ministers could have prevented the guidelines being applied indiscriminately. He is calling for the entire policy to be reviewed. 

The situation has similarities to the circumstances that led to the placing of the double rapist, Isla Bryson, in Cornton Vale women’s prison earlier this year. Initially, the then Scottish Justice Secretary, Keith Brown, insisted that it was a matter for the prison service, not him. That lasted about a week until Nicola Sturgeon stepped in to instruct the prison service to keep male bodied sex offenders in male jails. 

No doubt Keith Brown’s successor, Angela Constance, will be considering a similar intervention, under pressure from anti-rape lobby groups and the tabloid press. Expect a screech of brakes as Humza Yousaf decides he is going to be tough on crime and tough on the causes of prison reformers.