Lord Macfadyen identified that little research had been done into the consistency of sentencing, but that there was public perception that there is inconsistency.

[1]: iii Lord Macfadyen's report was written following an inquiry by the Justice 1 Committee of the Scottish Parliament in 2002.

Nonetheless, recognising that such a Sentencing Council would be created the Association asserted that it should have a judicial majority.

Scottish Women's Aid asserted that there should be more than one victims' right advocate on the Council, but they agreed with the High Court, Sheriffs' Association and Faculty of Advocates that the appeal courts should have the power to vary (dismiss, reduce, or increase) the sentence of convicts.

unless the court is satisfied that it would be contrary to the interests of justice to do so.The Royal Society of Edinburgh in considering the establishment of the Scottish Sentencing Council looked at the example of England and Wales, with the more binding nature of guidelines, and identified that many more crimes in England and Wales have sentences prescribed by statute than is the case in Scotland.

It was their assertion that the original proposal, with a predominantly lay Council, and guidelines that were binding on the Appeal Court would: ...be a gross derogation from the independence of the judiciary and entirely unwarranted.They went to question if such a situation would allow the Appeal Court to be regarded as independent and impartial tribunal under Article 6 of the European Convention on Human Rights.

Which highlighted in a report from the Justice Select Committee of the House of Commons in 2009, where it was recognised that Parliament, as a legislature, was responsible for defining the overall framework.

The Council was to have, as legally qualified members a prosecutor from the Crown Office, an advocate, and a solicitor.

It has been established to improve public confidence in sentencing in Scotland, and at the same time ensure judicial independence.

[17]: Section 48 In guideline judgments the judges or Appeal Sherrifs can give guidance on how sentencing should be handled in similar cases.

[24] However, in 2007 a study by Millie, Tombs and Hough, comparing sentencing decisions between Scotland and England & Wales, noted that Scotland did not have a well developed body of guideline judgments, and that Sheriffs, Senators, and Justices of the Peace tended to consider how a sentenced might be perceived by the Court of Criminal Appeal.

[27] There were a further 7 cases that the Council regarded as providing guidance, but these were not issued under the Criminal Procedure (Scotland) Act 1995.

[29] The Falkirk Herald ran a campaign piece on 3 December 2016, on causing death by dangerous driving, where it highlighted public discontent with the apparent leniency of sentencing decisions in such cases.

[30] The categories of membership for the Scottish Sentencing Council are laid down in Schedule 1 of the Criminal Justice and Licensing (Scotland) Act 2010.

[18]: Schedule 1 Appointment of the judicial and legally qualified members is regulated by The Scottish Sentencing Council (Procedure for Appointment of Members) Regulations 2015, which require the Lord Justice General to convene a panel to hear applications for positions open to sheriffs, summary sheriffs, justices of the peace, advocate, and solicitor.

[16]: Section 62 [33] The Secretariat is headed up by Ondine Tennant, who was appointed in October 2014, and holds an LLB (Hons) in Law and Politics from the University of Edinburgh.