Future Rrends in Sentencing Policy — The Satisfaction of the Individual Victim Within a System of Public Prosecution*
| DOI | 10.1177/026975809100100403 |
| Published date | 01 January 1991 |
| Date | 01 January 1991 |
| Author |
International Review
of
Victimology, 1991, Vol. 1, pp. 315-334
0269-7580/91
$10
©
1991
A B Academic Publishers-Printed in Great Britain
FUTURE
TRENDS
IN
SENTENCING
POLICY
-
THE
SATISFACTION
OF
THE
INDIVIDUAL
VICTIM
WITHIN
A
SYSTEM
OF
PUBLIC
PROSECUTION
1
THE
RT
HON
THE
LORD CAMERON
OF
LOCHBROOM
QC
Court
of
Session, Parliament House, Edinburgh, UK
ABSTRACT
This article examines firstly the way
in
which the
civil
and criminal systems of law
in
Scotland have developed and the ways in which they compensate victims of injury or loss
through crime, and secondly the relationship between the victim and perpetrator in the
context of the judicial system and process.
It
examines the historical background to
sentencing policy and the present state of the law
in
this area in Scotland. The article
concludes
by
considering the civil process in France and
by
!)uggesting possible ways in
which any advantages from the Continent may be incorporated into the laws of Scotland.
The discussion highlights the changing attitudes to sentencing policy in Scotland, and
contributes to a more general discussion on the changing attitude to the law and treatment
of the victims of crime
in
Europe
as
a whole.
"To inflict a just penalty
or
punishment
is
indeed an act of goodness,
but it
is
also an act which
is
forced on the agent, and it has value only as
being a necessity. (It would be better if neither individuals nor states ever
needed recourse to any such action.)
...
An
act of punishment is a choice
of something which, in a sense,
is
an
evil"-
Aristotle's Politics (Barker's
Translation).
INTRODUCTION
Sentencing policy has, in modern times, come to be regarded largely
as a matter involving the offender and the state. In recent years, however,
there has been an increasing awareness that the criminal justice system
could do more for the victims of crime. The object of this paper
is
therefore
to explore, in the context of Scots Law, the possibility that, in future,
sentencing policy will increasingly be turning in criminal cases towards
disposals which not only satisfy the broader public interest, but also
benefit those individuals who have suffered injury
or
loss by the crime.
It
is
important at the outset to make two points. Firstly, reform of the
criminal law in Scotland does not fall within the ministerial responsibility
of the Lord Advocate; it
is
a matter for the Secretary of State for Scotland.
Secondly, while the Lord Advocate has responsibility for criminal
316
prosecution, traditionally in Scotland the prosecutor, be it the Lord
Advocate
or
one of his local representatives, the procurator fiscal, stands
apart from the question of sentence. Beyond moving the court to proceed
to sentence, the prosecutor makes no recommendation as to what the
sentence should be. Indeed to do so would be to transgress a prohibition
clearly established in our law:
'But though the Public Prosecutor has the power to restrict, formally,
the powers
of
law to an arbitrary punishment, he has no right to point
out, or dictate, to the Court, what the punishment ought to be, as, by
qualifying the restriction,
or
by specifying a particular punishment.
This would be usurping the authority of the Court and limiting them
in the exercise of their duty, it being their province, and theirs alone,
to determine
as
to the nature and extent of the punishment' (Burnett,
1811;
p.
311).
Any views expressed in this paper on sentencing
or
judicial policy
therefore represent the writer's own thoughts on the subject and do not
represent statements either
of
official government policy
or of
intended
judicial practice.
HISTORICAL
DEVELOPMENT
Scots Law, no doubt like many other systems, struggled to emerge
from more barbarous times. In that relatively primitive period the rule
of
law was weak; private, even tribal, justice was the norm. In the absence of
strong centralised government, the vendetta
or
blood-feud flourished.
Justice was certainly rough, if not always ready, and the system was fuelled
by a desire for vengeance. Then in Scotland, as elsewhere, as the criminal
law evolved, a familiar pattern emerged whereby the central authority in
the shape of the King gradually established control over the hitherto
anarchical feuding of the lieges. As royal authority spread so did the
concept of 'the King's peace' and with it the idea of public justice and
prosecution by the state began to take root. This historical develoment was
well-described by Lord Simon of Glaisdale in a celebrated Scottish civil
case, McKendrick
v.
Sinclair
(1972):
'Most archaic legal systems show signs that the earliest deterrence to
anti-social conduct lay in self-help, socialised into a system
of
family
vendetta. The germ of a public system of justice
is
generally to be
found
in
some form of control over the vendetta.
At
first it
is
generally only an imposed limitation on the degree of relationship to
the injured person of the persons entitled to seek revenge and on the
degree of relationship to the offender of the person who might be
made the subject of the vengeance' (p. 56).
It
appears also to have been a feature of the strengthening of royal
authority that pressure was brought upon those involved in blood feuds to
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