QUEEN'S BENCH DIVISION
London, WC2A 2LL
B e f o r e :
MR JUSTICE PITCHFORD
| THE QUEEN on the application of GORDON McFETRICH
|- and -
| THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
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Official Shorthand Writers to the Court)
Sarah-Jane Davies (instructed by Treasury Solicitor) for the Respondent
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©
Crown Copyright ©
Lord Justice Scott Baker
"If this defendant had been convicted of murder in England and Wales, on the facts summarised in the Scottish reports, I would expect a tariff somewhat longer than eight years to be recommended. Plainly this was a case in which there was a highly fraught emotional background arising out of the disputes concerning the children and the accusations made against the defendant, and that background would to some extent be recognised as mitigating the gravity of the offence. But this was a very savage attack on the deceased, carried out with a knife which it appears the defendant had taken with him to her address. On the facts as summarised, and having regard to the defendant's plea of guilty, I would expect a tariff term in England and Wales to be fixed at 10 – ll years. I question whether a shorter term would be thought to meet the requirements of retribution and general deterrence."
"The Secretary of State does not accept that a tariff of 8 years, as recommended by the trial judge and the Lord Justice General, is sufficient to satisfy the requirements of retribution and deterrence for your offence. He has attached weight to the fact that you carried out a savage attack on your wife with a knife which you had taken with you to the scene. He has also attached weight to the fact that the attack took place in front of your elder son. The Secretary of State has also attached weight to the fact that, by going to your wife's new home and there killing her, you abused the information as to her whereabouts that came to you through the legal process in relation to custody of your son.
Having regard to all the circumstances of your case, the Secretary of State has concluded that a tariff of 12 years is necessary to satisfy the requirements of retribution and deterrence for your offence."
"(1) The responsible Minister may, on the application of a person serving a sentence of imprisonment or detention in any part of the United Kingdom, make an order for his transfer to another part of the United Kingdom or to any of the Channel Islands or the Isle of Man, there to serve the remainder of his sentence, and for his removal to an appropriate institution there.
(2) Where a person has been sentenced to imprisonment or detention in any part of the United Kingdom or in any of the Channel Islands or the Isle of Man, the Secretary of State may, without application in that behalf, make an order for his transfer to any part of the United Kingdom, there to serve the remainder of his sentence, as the case may be, and for his removal to an appropriate institution in that part of the United Kingdom.
(4) Subject to the following provisions of this section, a person transferred under this section to any part of the United Kingdom or to any of the Channel Islands or the Isle of Man there to serve his sentence or the remainder of his sentence, shall be treated for the purposes of detention, release, supervision, recall or otherwise, as if that sentence (and any other sentence to which he may be subject) had been an equivalent sentence passed by a court in the place to which he is transferred."
"(1) If recommended to do so by the Parole Board, the Secretary of State may, after consultation with the Lord Chief Justice together with the trial judge if available, release on licence a life prisoner who is not one to whom s.28 above applies.
(2) The Parole Board shall not make a recommendation under subsection (1) above unless the Secretary of State has referred the particular case, or the class of case to which that case belongs, to the Board for its advice."
This section replaced s.35(2) and (3) of the 1991 Act, which was in identical terms.
Article 7(1) provides:
"No one shall be guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
The English Procedure
The Scottish procedure
"Finally, looking behind appearances at the realities of the situation, whatever the characterisation of the measure of confiscation, the fact remains that the applicant faced more far-reaching detriment as a result of the order than that to which he was exposed at the time of the commission of the offences for which he was convicted."
"3. The Commission recalls that the applicant was sentenced to life imprisonment in 1973 for committing a murder in the course of a robbery. It is clear that the penalty for this offence at the time it was committed was life imprisonment and thus no issue under Art. 7 (art. 7) arises in this respect.
4. Furthermore, in the opinion of the Commission, the "penalty" for purposes of Art. 7, para 1 (art. 7-1), must be considered to be that of life imprisonment. Nevertheless it is true that as a result of the change in parole policy the applicant will not become eligible for release on parole until he has served 20 years' imprisonment. Although this may give rise to the result that his imprisonment is effectively harsher than if he had been eligible for release on parole at an earlier stage, such matters relate to the execution of the imprisonment as opposed to the "penalty" which remains that of life imprisonment. Accordingly, it cannot be said that the "penalty" imposed is a heavier one than that imposed by the trial judge."
"It is clear beyond doubt that the fixing of a convicted murderer's tariff, whether it be for the remainder of his days or for a relatively short time only, involves an assessment of the quantum of punishment he should undergo."
Lord Steyn said at paragraph 52:
"A decision fixing the tariff in an individual case is unquestionably a decision about the level of punishment which is appropriate. Mellifluous words cannot hide this reality."
"The court must therefore verify that at the time when the accused prisoner performed the act which led to him being prosecuted and convicted there was in force a legal provision which made that act punishable, and that the punishment imposed did not exceed the limits fixed by that provision…….."
"The essential question is whether the statutory imposition of the licence constituted the imposition of a penalty greater than that which would have been imposed at the time he committed the offences."
He said it was plain that the purpose of a licence was to enable a long-term prisoner to stay out of trouble, both for his own benefit and for the benefit of the community and so that he did not again lose his liberty. He said at paragraph 15:
"I conclude that the nature and purpose of the licence are such that they dominate the factors which go to the conclusion as to whether the imposition of a licence is a penalty or not. The imposition of a licence is designed to protect the public once an prisoner is released, and assist in preventing the prisoner from committing further offences."
Pitchford J :