APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal Nos: C304/98
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTES OF APPEAL AGAINST SENTENCE
NEIL GRANT MURRAY, MARK JAMES HARTLEY and STEVEN SIMPSON
HER MAJESTY'S ADVOCATE
Appellants: M. Scott; McCourts: P.McBride; Burnett Christie: P. Wheatley; Wheatley & Co.
Respondent: P. Brodie, Q.C., A.D.; Crown Agent
10 September 1999
Each of the appellants, having obtained leave to lodge a late note of appeal against sentence, has appealed against the certificate issued by the Lord Justice General under section 16(2) of the Crime and Punishment (Scotland) Act 1997. In each case he certified as his opinion that if section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by the 1997 Act, had been in force at the time when the particular appellant was sentenced, the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served 12 years of that sentence.
The appellant Murray was convicted on 2 September 1988 of a charge of murder in terms of which it was alleged that he had repeatedly punched and kicked the deceased about the head, face, neck and body, repeatedly stamped and jumped on his head, face, neck and private parts, repeatedly struck him on the face and head with a piece of wood or similar instrument, and robbed him of a set of keys. The attack was a premeditated attack on the deceased because he was a homosexual. It was characterised by the Lord Justice General as "sustained and brutal, including a deliberate attack on the deceased's private parts". Moreover, once the initial assault was over, the appellant returned and administered further kicks to the head of the moribund body of the deceased and also beat him about the head with a branch which broke into several pieces. The appellant Hartley appeared on the same indictment and was convicted in similar, but not identical, terms. These were that he had repeatedly punched and kicked the deceased about the head, face, neck and body. It was plain that the jury considered that Murray had played a more important role than Hartley in the attack. The trial judge agreed. In his report at the time said:
"It was clear from the evidence that this was a vicious and prolonged attack on a defenceless victim with no motive other than the pleasure of inflicting a savage beating on someone who was thought to be a homosexual. While both accused took an active part, it appeared that Murray's involvement was greater. At one stage of the assault, Murray was heard to say 'Die, you bastard'".
At the date of the murder and of the sentence Murray was 16 years of age, whereas Hartley was 15 years of age. Under section 205(2) of the Criminal Procedure (Scotland) Act 1975, as amended, they were sentenced to be detained without limit of time and to be liable to be detained in such place, and under such conditions as the Secretary of State might direct. In the case of each of these appellants the relevant statutory provision as to their release which was in force at the time when they were sentenced was contained in section 61(1) of the Criminal Justice Act 1967, as amended, which provided that the Secretary of State might, if recommended to do so by the parole board, release such a prisoner on licence but should not release him except after consultation with the Lord Justice General together with the trial judge if available.
The appellant Simpson pled guilty on 7 July 1992 to a charge of murder. In terms of that charge it was alleged that he had presented a knife or similar instrument at the deceased, pursued him and stabbed him twice in the back with it. In this case the Lord Justice General described the murder as "a callous and brutal crime with no mitigating feature". The trial judge in his report said:
"The only thing that can be said in favour of Simpson is his youth which may account to some extent for his savage irresponsibility".
The deceased was a man of 37 years of age, who was married with children and in regular employment. He was in the company of friends on the way home on a Friday evening when they were chased by a group, including Simpson, and he was subjected to the violent unprovoked attack which resulted in his death.
Simpson was 17 years of age at the date of the murder, and 18 years of age at the date of his sentence. Under section 205(3) of the 1975 Act, as amended, he was sentenced to be detained in a young offenders institution for life. In the type of case with which Simpson was concerned section 26(1) of the Prisons (Scotland) Act 1989 made a provision in regard to release which was in similar terms to those contained in section 61(1) of the 1967 Act, to which we have referred above.
In these circumstances it is clear that at the time when the appellants were sentenced there was no provision as to their release on licence after any particular part of their sentence had been served.
The Crime and Punishment (Scotland) Act 1997 introduced a number of changes with regard to the consideration by the parole board of the release of prisoners whose sentence was imposed in respect of a charge of murder.
Firstly, section 16(1) extended the provision which had been made by section 2 of the 1993 Act in regard to discretionary life prisoners. As amended by section 16(1), the relevant provisions of section 2 now read as follows:
"(1) In this Part of this Act 'designated life prisoner', subject to subsection (9)(a) below and except where the context otherwise requires, means a person -
(a) sentenced to life imprisonment for an offence for which, subject to paragraph (b) below, such a sentence is not the sentence fixed by law;
(c) whose sentence was imposed in respect of a murder committed by him before he attained the age of 18 years,
and in respect of whom the court which sentenced him for that offence made the order mentioned in subsection (2) below.
(2) The order referred to in subsection (1) above is an order that subsections (4) and (6) below shall apply to the designated life prisoner as soon as he has served such part of his sentence ('the designated part') as is specified in the order, being such part as the court considers appropriate taking into account -
(a) the seriousness of the offence, or of the offence combined with other offences associated with it;
(b) any previous conviction of the designated life prisoner; and
(c) where appropriate, the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act;
(3) Where a court which imposes life imprisonment for an offence such as is mentioned in subsection (1) above decides not to make such an order as is mentioned in subsection (2) above, it shall state its reasons for so deciding; and for the purposes of any appeal or review, any such order and any such decision shall each constitute part of a person's sentence within the meaning of the 1995 Act.
(4) Where this subsection applies, the Secretary of State shall, if directed to do so by the parole board, release a designated life prisoner on licence.
(6) Where this subsection applies, a designated life prisoner may, subject to subsection (7) below, at any time require the Secretary of State to refer his case to the parole board".
These provisions are now subject to the reference to the Secretary of State being read as a reference to the Scottish Ministers, by virtue of section 117 of the Scotland Act 1998.
Secondly, section 16(2) and (3) applied section 2 retrospectively to prisoners who had previously been sentenced in respect of murder committed by them before they attained the age of 18 years. Subsection (2) stated:
"This subsection applies where, in the case of a person sentenced, prior to the coming into force of this section, in respect of a murder committed by him before he attained the age of 18 years, the Lord Justice General, whom failing the Lord Justice Clerk, after consultation with the trial judge, if available, certifies his opinion that, if section 2 of the 1993 Act, as amended by this Act, had been in force at the time when the prisoner was sentenced, the court by which he was sentenced would have ordered that that section should apply to him as soon as he had served a part of a sentence specified in the certificate".
Subsection (3) stated:
"(3) In a case to which subsection (2) above applies, Part 1 of the 1993 Act, except sections 1(4) and 2(9), shall apply as if -
(a) the life prisoner concerned were a designated life prisoner within the meaning of section 2 of that Act; and
(b) the designated part of his sentence within the meaning of that section were the part specified in the certificate".
In each of these appeals the appellant maintains that the period stated in the certificate of the Lord Justice General was excessive. The principal argument which was submitted on behalf of each of them was that "the seriousness of the offence", within the meaning of para. (a) of section 2(2) of the 1993 Act, does not include the need for deterrence, and it was maintained that the decision in O'Neill v. H.M. Advocate 1999 S.C.C.R. 300 provided support for this.
In our view this submission is not well-founded. In O'Neill, which was concerned with a discretionary life sentence, it was pointed out that the original provision contained in section 2 had arisen from the decision of the European Court of Human Rights in Thynne, Wilson and Gemmill v. United Kingdom (1990) 13 E.H.R.R. 666, in which it was held that a discretionary life sentence was composed of a punitive component and a security component. In regard to the latter, the Secretary of State had the responsibility for determining when the public interest permitted the release of the prisoner. It is plain in our view that the European Court had in mind that the punitive component included both retribution and deterrence, and that the same applies to the determination of the "designated part" for the purpose of section 2(2) of the 1993 Act. We do not consider there is anything in the decision in O'Neill which shows that the court took a different view. We note that at page 308 the court stated:
"It follows that the designated part should be concerned with matters of punishment, rather than with the protection of the public. It is for this reason that the court is directed to take into account the factors set out in subsection (2)(a) and (b). Of course, the court may be entitled to have regard to factors other than those specified in fixing the period, but the resulting period must be one which is concerned with punishment rather than with the protection of the public".
It was also submitted on behalf of the appellants that each of them should have been given the opportunity to make representations before a decision was taken as to the designated part of their sentence. Since that sentence had been fixed by law there had been no scope for any plea in mitigation at the time. The appellants had not been advised that their sentences were under consideration for the purposes of section 16(2) of the 1997 Act. They were not notified of the periods which the Lord Justice General had selected, but instead had learnt about what had happened in a variety of ways.
It was also pointed out that the appellant Murray had been advised that he would be considered for release in June 1998. Hartley had been found suitable to attend Telford College in June 1997, and a hearing before a parole board to consider his release on licence had been fixed for November of that year. Simpson had been advised by the parole board that he would be eligible for consideration for release on licence in the year 2001 and a date had been set for a parole hearing. In the case of each appellant these arrangements were cancelled when the Lord Justice General issued the certificate. The court was told that the parole board would not consider the case of a particular appellant until the period selected in his case had expired.
Under reference to Elliott v. H.M. Advocate 1998 S.C.C.R. 111 the court was also invited to backdate the sentence in each case to the date when the appellant appeared on petition, namely 9 May 1988 in the case of Murray and Hartley, and 16 March 1992 in the case of Simpson.
A separate submission was made on behalf of Hartley that the Lord Justice General had misdirected himself in fact by certifying the same period for him as for Murray. He recognised Hartley's lesser degree of involvement, but appeared to have taken account of an allegation against Hartley that he had committed earlier offences of breach of the peace and a contravention of the Prevention of Crime Act in circumstances which amounted to a mugging of a homosexual which was very similar to what occurred on the occasion of the murder. That is the way in which the trial judge described the material placed before him in relation to a children's hearing in March 1988. In fact the grounds on which it was proposed to refer the appellant to a children's hearing had never been accepted. In addition, in the social enquiry report in which reference was made to the allegation, the description given was not of a homosexual mugging that could be compared in any reasonable sense with the murder. The whole matter should have been left out of account, and inevitably, on the basis of his lesser involvement, the part of the sentence in Hartley's case should have been shorter than that of Murray. In the case of Simpson the further submission was made that the Lord Justice General had failed to take account of one of the three factors specified in section 2(2) of the 1993 Act, as amended, namely the stage in the proceedings at which and the circumstances in which he had indicated his intention to plead guilty.
In view of the width and general importance of the submissions for the appellants, we consider that it is necessary to set out what we consider to be the correct approach to the application of section 16(2) of the 1997 Act.
Section 16(2) plainly requires the Lord Justice General, whom failing the Lord Justice Clerk, to reach an opinion as to the period which the court would have selected as the designated part of the life sentence if section 2, in its application to a sentence imposed in respect of a murder committed by the prisoner before he attained the age of 18 years, had been in force when that sentence was imposed. Accordingly, on that hypothesis, the question is what would have been ordered at the date when that sentence was imposed. It follows that any indications which have been given during the intervening period since then to the effect that the prisoner is to be considered for parole at one stage or another cannot be directly relevant, since that information could not have been available to the court at the date when sentence was imposed. It also follows that anything which might have been put before the court at that time as relevant to the length of the designated part, whether by way of mitigation or otherwise, remains relevant to the retrospective opinion which requires to be expressed in accordance with section 16(2).
The purpose of section 2(2) of the 1993 Act, and hence, by extension, section 16(2) of the 1997 Act, is to create a right in the life prisoner to require that his case be referred to the parole board in accordance with section 2(6). When subsections (2) and (6) of section 2 are read together, as they should, it is plain that it is intended that the prisoner should be able to exercise that right as soon as he has served such part of his sentence as the court considers to be "appropriate". This is the purpose in connection with which the court is required to take into account the matters set out in paras. (a), (b) and (c) of subsection (2). Thus the exercise which the court is required to carry out directly affects when the right to apply comes into existence.
On behalf of the appellants it was submitted that, in approaching his task the Lord Justice General, whom failing the Lord Justice Clerk, should adopt a similar approach to that adopted in O'Neill in regard to a discretionary life sentence. For reasons which we will set out in what follows we do not consider that this is either appropriate or practicable.
The basis on which a discretionary life sentence is imposed is radically different from that of a mandatory life sentence. A judge who imposes a discretionary life sentence does so because there is a need to protect the public against offending by the prisoner which would not be adequately met by the imposition of a determinate sentence. Such a sentence is therefore directed to ensuring that the prisoner will be kept in custody until it is thought safe for him to be released. It is possible to regard the discretionary life sentence as consisting of two components, namely a determinate period appropriate to the nature and gravity of the crime, which may be referred to as the penal component, and an indeterminate period which takes into account the need to protect the public, and may be referred to as the risk component. This distinction appears clearly from the original terms of section 2 of the 1993 Act, which related solely to the category of prisoner who was then referred to as the "discretionary life prisoner". The sentencer was to determine the length of the penal component. The parole board was not to direct the release of the prisoner thereafter unless it was satisfied that it was no longer necessary for the protection of the public that he should be confined.
The approach of the court in O'Neill, in dealing with a discretionary life sentence, was, firstly, to decide what period of custody would be appropriate as punishment for the crime, as distinct from what was necessary for the protection of the public; and, secondly, on the basis of doing justice in comparison with an actual determinate sentence, to take one-half thereof as appropriate for the purpose of arriving at "the designated part".
A mandatory life sentence, on the other hand, is not based on any judgment by the sentencer as to the need for the protection of the public. It falls to be imposed as the automatic consequence of the murder conviction. While the circumstances in which a mandatory life sentence is imposed may be such as to indicate that there is a need for the public to be protected from the prisoner and that its protection should be considered before his release, that may not necessarily be the case. In any event, whether or not it is so, this has no effect on the sentence which is inevitably the same. These considerations might suggest that a crime for which a mandatory life sentence is imposed is of such gravity that there is no finite component which can readily be assigned for the purpose of punishment. In this context the discussion of similar questions in England in the speech of Lord Mustill in R. v Home Secretary ex parte Doody  1 AC 531 at pages 549-551 and 553-556 is instructive. As he points out, the European Court of Human Rights in Thynne, Wilson & Gemmill v United Kingdom plainly recognised the distinction between the underlying rationale of a discretionary and that of a mandatory life sentence. At any rate the considerations to which we have referred underline the considerable difficulty of separately identifying the penal component of a mandatory life sentence and assigning a particular part of the sentence to it.
As can be seen from the terms of the 1993 Act, as amended by the 1997 Act, the position remains that in regard to the generality of mandatory life sentences, the release of the prisoner on licence is a matter for the discretion of the appropriate Minister, in accordance with section 1(4) of the 1993 Act. However, in the case of prisoners who had committed murder while under 18 years of age, Parliament chose to make an exception. Presumably that was done for reasons of policy relating to the age at which the murder was committed. It is, if course, important to bear in mind that, as the court pointed out in O'Neill at page 305, the provisions of section 2 are designed to work in favour of the prisoner by giving him the right to require his case to be referred to the parole board when the designated part of his sentence has been served. The result of the legislative change has been, quite exceptionally, to put the prisoner who has committed murder while under the age of 18 into the same category as a prisoner on whom a discretionary life sentence has been passed.
There is a further respect in which the approach taken by the court in O'Neill is not apposite in the case of the mandatory life sentence. In O'Neill the court took one-half of the period appropriate for punishment as the "designated part". As we have already noted, the court did so because of considerations of comparative justice. As the court states it at page 307D-E it took the view that these required that the "designated part" must bear some relationship to what it referred to as the "minimum period" which a prisoner would actually require to serve if a determinate sentence had been imposed on him in respect of a similar crime. The court regarded that "minimum period" as being dictated by the terms of the 1993 Act, and in most, though not in all, cases by that part of section 1(3) which provides that a prisoner might be released on licence after serving one-half of his sentence, if the parole board recommended that he should be released. That comparison does not arise in the case of a murder sentence, where there is nothing which corresponds to the choice between a determinate sentence on the one hand and a life sentence on the other which is open to a sentencer in the case of crimes other than murder.
In these circumstances we are satisfied that the approach which was taken by the court in O'Neill is not one which is appropriate in the case of a mandatory life sentence, let alone practicable in such a case.
In determining the "designated part" in those cases of murder which now fall within the scope of section 2 of the 1993 Act, and by extension section 16(2) of that Act, there is no means by which the sentencer can proceed by way of comparison. There is no convenient yardstick or point of reference. Standing the unique quality of the crime of murder, comparison with sentences in respect of other crimes is of little use. He will, of course, require to consider the comparative gravity of the features of the particular case with which he is concerned, taking account of whatever factors may tend to aggravate the seriousness of the prisoner's conduct on the one hand or mitigate it on the other. It is important to bear in mind that in the end of the day in determining the needs of punishment, he is concerned with what section 2(2) refers to as the "appropriate" part of the sentence to be designated, that is to say appropriate to be served before the prisoner obtains the right to require his case to be referred to the parole board. This, of course, does not mean that the prisoner thereby acquires any right to release. It is then for the parole board to consider whether, and if so when, he should be released. Section 2 does not purport to state exhaustively what the parole board are to consider. Rather, it states the matter in a negative fashion, by providing that the parole board are not to recommend the prisoner's release unless they are satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
We have carefully considered the particular circumstances of each of the cases, the fact that none of the appellants had previous convictions libelled against him, and the fact that the appellant Simpson tendered a plea of guilty. However, these were particularly brutal murders which were rightly considered as particularly grave notwithstanding the age of the appellants. In the result we are not satisfied that the periods selected by the Lord Justice General in the case of Simpson and Murray were excessive. In the case of Hartley, we consider that by reason of his lesser involvement and the fact that it has been shown that his earlier conduct did not have the significance which evidently was attached to it, his appeal should be allowed and that a period of eleven years should be substituted in place of the twelve years selected by the Lord Justice General. As regards backdating, the sentences should run from 9 May 1988 in the case of Murray and Hartley, and 16 March 1992 in the case of Simpson.