In a landmark speech, Lord Carloway has laid a path for radical reforms when the new Scottish Sentencing Council – which he will chair – is created.
In remarks afterwards, he denied jail terms would be uniformly cut, saying they would be decided on a case-by-case basis.
But his speech at a conference organised by the community safety body Sacro signalled a number of changes towards a more utilitarian justice system.
Lord Carloway, Scotland’s second most senior judge as Lord Justice Clerk, has already triggered huge upheaval of Scots law by recommending the requirement for corroboration be scrapped, which the Scottish Government has accepted.
The bill creating the Sentencing Council has been passed by the Scottish Parliament, but has yet to come into effect.
Lord Carloway told the audience of lawyers, judges and politicians at the Playfair Library in Edinburgh: “I have little doubt that, once the council is established, it will take Scotland into a new era of sentencing: one which will attempt to create a more principled approach and will define, upon the basis of concrete research, what we are trying to achieve and how it can be achieved.
“It will advance Scotland into a more civilised era where retribution, other than in relation to the most serious of crimes, will have a smaller plate at the sentencing table.”
He said judges should be looking at what they can do to rehabilitate, rather than punish.
“What ought to be being considered is a move away from this type of approach [retribution], designed to stigmatise the offender and to subjugate and isolate him from society, to a model in which the sentences are far more tailored to the individual offender, and are more inclusive in taking account of the needs of the community.”
At present courts cannot specify what rehabilitation measures should be put in place, he added.
Lord Carloway also suggested more importance could be placed on public opinion, saying: “If sentencing decisions do not generally accord with public perceptions of just punishment, respect for, and the value of, the sentencing process and the courts will deteriorate.”
In remarks after his speech, he added: “The public wants lower sentences than courts are imposing – that’s what Scottish Government reports are suggesting.”
Lord Carloway also addressed the issue of long sentences for more serious crimes. “Hopefully the sentencing council will look at punishment parts and, in particular, that they’re increasing in response to either political or public pressure to increase sentences at the high end,” he said.
“[Courts] have to sentence in accordance with public expectation, and if public expectation is ‘just deserts’ then progress will be extremely slow.”
The council will also include four judicial office holders, three lawyers, a police officer, a victims expert and another lay person.