Lord Justice General
Appeal No: C591/98
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: McVicar; MacBeth Currie & Co.
Respondent: Bell, Q.C., A.D.; Crown Agent
9 March 1999
The appellant is John O'Neill who pled guilty at the High Court at Glasgow to assault to severe injury. The sentencing judge imposed a sentence of life imprisonment and fixed the designated part in terms of Section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 at 7 years. The appellant appeals against the sentence of life imprisonment and also against the period which was designated by the sentencing judge.
In his report to this court the sentencing judge explains that on the day in question at about 8 o'clock in the morning the complainer passed the appellant who was kneeling down tying his shoelaces. She then went down the stairs leading into Mount Florida Railway Station and, as she was doing so, she felt what she thought was a tug at the bottom of her jacket. When she turned, she saw a long domestic knife and she felt a wet patch at her back. She realised that the appellant had approached her and stabbed her in the back. The crucial point to notice is that the complainer was a young woman who was completely unknown to the appellant.
The complainer passed out and was taken to the Victoria Infirmary where she was found to have a stab wound at the lower end of the rib cage. The wound was 2 - 3 cm in length and it was a clean, incised wound. The wound appeared to be superficial and it was not explored further, but the complainer was kept in hospital for observation for five days. Despite initial concern for her condition, because she is a diabetic and the wound caused a lowering in her blood pressure, the complainer recovered without requiring treatment.
When interviewed, the appellant explained that he had consumed a large amount of cider and vodka the previous night and that morning and that he was drunk - steaming, running about mad, as he put it. He said that he had been carrying a knife, as he was in the habit of doing when drunk, for protection. At the railway station he had put it up his sleeve and had then taken it out and moved it about, waving it. He confirmed that he had used it to stab someone whom he did not know. He said "I don't know what I done it for" and referred to something snapping in his head.
The sentencing judge draws attention to the fact that the appellant's record contains a number of previous convictions for assault. Two of these, dating from 1994, involved serious injury. It emerged from a psychiatric report that the conviction on 19 September 1994 for assault to severe injury and permanent disfigurement had related to the appellant slashing a man whom he did not know. As the sentencing judge pointed out, the appellant was therefore someone who had twice used a knife to attack complete strangers, one of whom had been severely injured and suffered permanent disfigurement. The judge was informed that on both occasions the appellant had been under the influence of drink and the psychiatric view was that he suffers from Alcohol Dependency Syndrome. Dr. Ramsay, a psychiatrist who had examined him, said that he was suffering from no mental disorder of any kind and had no problems with aggression when sober.
The sentencing judge formed the view that the assault on the complainer in this case fitted into a pattern of aggressive behaviour when the appellant was drunk. He also noted that the appellant would drink as much as he could get his hands on. In the social enquiry report the appellant was recorded as admitting that he was a danger to the public when drunk, but as saying that the danger would be alleviated if he dealt with his alcohol abuse. Though Dr. Ramsay considered that the appellant had a good insight into his condition and was keen to stop drinking, she concluded by observing that there is no method by which the appellant can be forced to abstain from drink, should he not wish to do so.
It should also be noticed that the present offence was committed when the appellant was on licence from a sentence imposed by the High Court in respect of a conviction for offences which had also been committed when he was on licence.
The judge took the view that, on the information before him, there was only one way of preventing the appellant from committing further random serious attacks on innocent victims and that was by imprisonment. Since the trial judge had no way of knowing whether the appellant could ever be released without serious threat to public safety, he selected a sentence of imprisonment for life. The only question for this court is whether in the circumstances that life sentence can be said to be excessive. In our view it cannot. On the contrary, for the reasons which the trial judge gives, we consider that he was fully entitled to take the view that a life sentence was appropriate. We have in mind in particular the fact that, despite his insight into his tendency to aggression when drunk, the appellant has continued to drink; and the fact that on two occasions this has led to him attacking total strangers with a knife, completely out of the blue. It is plain that the appellant presents a serious danger to members of the public of both sexes and in these circumstances the judge could properly take the view that they were entitled to the protection which is afforded by the life sentence. We shall accordingly refuse the appeal against the imposition of a life sentence.
Having decided to impose a discretionary life sentence, the trial judge then had either to make an order in terms of Section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 or to state his reasons for deciding not to do so. This aspect of the appeal requires the court to examine the provisions of Section 2 in more detail than has been required in earlier cases. Indeed the court, having discovered certain relevant English authorities after the original hearing of the appeal, put the appeal out for further argument on the point.
The trial judge designated a period of seven years under what he described as "the odd provisions" of the 1993 Act. The provisions of Section 2 are indeed somewhat complex, but in our view their purpose, at least, is not hard to discern when their terms and the background to the legislation are taken into account. For that reason we refer to these matters, even though we were referred to none of the Convention cases.
When an order is made under subsection (2) of Section 2, the prisoner becomes "a discretionary life prisoner" in terms of subsection (1) and the period specified in the order is known as "the designated part" (subsection (2)). Subsection (2) provides:
"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."
The order is therefore intended to prescribe the period after which subsections (4) and (6) are to apply to the prisoner. In order to appreciate the purpose of the scheme which the legislation lays down, it is essential to remember that subsections (4) and (6) work in favour of the prisoner. It is therefore to his advantage, rather than to his disadvantage, that an order be made. This can be seen from the terms of these subsections. Subsection (6) provides that, where it applies, "a designated life prisoner may ... at any time require the Secretary of State to refer his case to the Parole Board" and under subsection (4) the Secretary of State must, if directed to do so by the Parole Board, release him. The purpose of any order under Section 2(2) is therefore to prescribe a period after which the prisoner has the right to require the Secretary of State to refer his case to the Parole Board who must then consider whether he should be released. An order under subsection (2) therefore confers a right on the prisoner which he would not have if the order were not made. In the absence of such an order, the Secretary of State might, of course, in the exercise of his discretion refer the prisoner's case to the Parole Board at any time, but, equally, he might, in the proper exercise of his discretion, decide not to do so. The critical difference is that, where an order is made, the prisoner no longer has to rely on the discretion of the Secretary of State: he has the right to require the Secretary of State to refer his case to the Parole Board and the Secretary of State must do so.
The provisions in Section 2 of the 1993 Act were introduced into our law following the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom Series A, No. 190 (1990); (1990) 13 E.H.R.R. 666 which dealt with applications by discretionary life sentence prisoners in England. The applicants founded on Article 5(4) of the European Convention on Human Rights:
"Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful."
In particular the applicants complained of a violation of Article 5(4) on the ground that they were not able to have the continued lawfulness of their detention decided by a court at reasonable intervals throughout their imprisonment. The European Court considered that a discretionary life sentence in English law was composed of a punitive element and subsequently of a security element designed to confer on the Secretary of State the responsibility for determining when the public interest permits the prisoner's release (paragraphs 73 and 74). In the case of all the applicants the punitive period had expired and in that situation the Court held that the applicants were entitled to judicial control as guaranteed by Article 5(4) (paragraph 78).
The core of the Court's reasoning is found in paragraph 76:
"Having regard to the foregoing, the Court finds that the detention of the applicants after the expiry of the punitive periods of their sentences is comparable to that at issue in the VAN DROOGENBROECK and WEEKS cases: the factors of mental instability and dangerousness are susceptible to change over the passage of time and new issues of lawfulness may thus arise in the course of detention. It follows that at this phase in the execution of their sentences, the applicants are entitled under Article 5(4) to take proceedings to have the lawfulness of their continued detention decided by a court at reasonable intervals and to have the lawfulness of any re-detention determined by a court."
That being the background, it is plain that in the 1993 Act, and in the equivalent legislation for England and Wales, Parliament has put in place machinery by which a judge can specify the "punitive period" of a prisoner's sentence. The criteria to which the judge is to have regard in terms of subsection (2) are designed ensure that the specified period is indeed one which meets the requirements of punishment. Once that period expires, the prisoner has the right to have his case considered by the Parole Board and, if the Board so recommend, he must be released. The European Court has held that the Parole Board for England and Wales has the necessary independence to constitute a "court" for the purposes of Article 5(4): Weeks v. United Kingdom Series A No. 114 (1987); (1988) 10 EHRR 293 at para. 62. In considering whether the prisoner should be released, the Board will, of course, consider whether the prisoner remains a danger to the public. Therefore, under the system envisaged in the Act, in any case where a judge imposes a discretionary life sentence, the punitive element is for him to determine in terms of subsection (2), while the actual date of release is a matter for the independent Parole Board to determine, having regard to any danger which the prisoner may continue to pose to the public.
It follows that it will be only in the exceptional case, where a judge determines that the appropriate "punitive period" for a prisoner to serve in prison is the remainder of his natural life, that the trial judge will decide not to make an order under subsection (2). If the judge decides to take that exceptional course, then he must state his reasons for doing so (subsection (3)). We stress that it is only in these circumstances that a court should not make an order under subsection (2) because counsel for the appellant actually advanced the argument that the sentencing judge had erred, not because the period which he had designated was too long, but because he had designated any period at all. This was a misconceived approach which counsel in due course remodelled into a submission that the sentencing judge had designated an excessively long period and that this court should designate a shorter period. For the avoidance of doubt, we should add that the observations in Robertson v. H.M. Advocate 1997 S.C.C.R. 534, at p. 541 C - D, to the effect that it might be inappropriate to specify a period under Section 2(2) in a case where the actual offence would normally attract only a short sentence, should be regarded as having been made per incuriam in a case where the point was not fully argued.
In the present case the sentencing judge made an order that the appellant should serve seven years before subsections (2) and (4) should apply to him. In his report to this court the judge described his approach in this way:
"Since I had no way of telling whether it will ever be possible to release him back into the community without creating a serious threat to public safety, I considered the only appropriate sentence was one of imprisonment for life. I fixed a relatively short 'designated part' of seven years. The injury inflicted was not grave. The appellant pled guilty and spared his victim the ordeal of appearing in court. However, his record was such that I was bound to impose a significant period in spite of the favourable features of these other two factors. In addition I considered any such designated part should take account of the general need to protect the public from random mindless violence and to deter the appellant and others from engaging in such conduct. In fixing the period of seven years I took into account that the appellant had been in custody since 5 May. I could not backdate either that period or the sentence of life imprisonment because I considered it necessary to order that the period of 120 days outstanding in respect of his previous sentence should be served. That period cannot be backdated. I ordered it to run concurrently with the sentence of life imprisonment from 14 September, the day I imposed sentence."
From this passage it is plain that a significant factor in the sentencing judge's selection of the period of seven years was his view that the designated period should take account of the general need to protect the public. For the reasons which we have given, we are satisfied that, as can be seen from the terms of subsection (2), the true purpose of the order is to designate the period which the prisoner must serve as a punishment for his crime, while it is for the Parole Board to determine when he can be released, having regard to the need to protect the public. We are therefore satisfied that this passage in his report reveals a material error in the sentencing judge's approach. Cf. Clark v. H. M. Advocate 1997 S.C.C.R. 416.
It is relatively easy, in the light of Section 2(2), to determine that the sentencing judge was wrong to adopt the approach which he did. It is perhaps harder to prescribe precisely how a judge should carry out the novel exercise of determining the appropriate period to designate under that provision. We note that in England the courts have had to face very similar problems in interpreting the equivalent English legislation and, in formulating the approach which we should adopt to the Scottish provisions, we have derived assistance from considering the reasoning of the Court of Appeal Criminal Division in R. v. Marklew and Lambert  1 Cr. App. R. (S.) 6.
Since the purpose of the order under Section 2(2) is to determine the punitive period which the prisoner must serve before he can require the Secretary of State to refer his case to the Parole Board, the period selected must be the minimum period which the prisoner should actually serve in prison as a punishment for his crime before he could be released. That is different from the period to which a judge might actually sentence him for that crime, for two reasons: first, the judge would, normally at least, simply decide what sentence was appropriate as a punishment and would not consider at what point in the sentence the prisoner might actually be released; secondly, the judge would take all relevant factors into account and would not isolate these specified in Section 2(2)(a) and (b). It follows that the exercise of determining a designated part in terms of Section 2(2) is distinct from the exercise of determining the appropriate determinate sentence for a similar crime. On the other hand, the designated part must bear some relationship to such a determinate sentence, since, leaving aside the exceptional case where imprisonment for life would be the appropriate punishment, comparative justice requires that the designated period should bear a fair and reasonable relationship to the minimum period which a prisoner would actually require to serve under a determinate sentence imposed in similar circumstances, but lacking the special requirement of public protection which has led to the life sentence. That minimum period is in effect set by Parliament in terms of the 1993 Act. Under Section 1(3) a prisoner serving a sentence of four years or more is entitled to be released on licence after serving two-thirds of his sentence and may be released on licence after serving one-half of his sentence, if the Parole Board recommends that he should be released. These provisions show that Parliament currently takes the view that the minimum period which a long-term prisoner should serve as a punishment before he can be released on licence is one-half of his sentence. In our view, therefore, in deciding what period to specify as the designated part after which a prisoner is entitled to have the Parole Board consider whether he should be released, the court must have regard to the actual minimum period which the prisoner would have required to serve before he could be released if a determinate sentence had been imposed for the crime.
The obvious difficulty, which was pointed out by the Advocate Depute, is that, in deciding what is the appropriate determinate sentence to impose for a particular crime, a court may often have regard to the need to protect the public. If, therefore, the court were simply to have regard to what would be the appropriate determinate sentence, given the need to protect the public, the figure which would be reached by reference to one half of that sentence would be a figure which would include an element of protection of the public, rather than being a figure which was concerned only with punishment. If, on the other hand, the element for the protection of the public were stripped out, the effect would be to reduce what might be the usual figure for the determinate sentence and hence, correspondingly, to reduce the figure for half that determinate sentence. On that second approach it would be possible, in theory at least, for the Parole Board to recommend that a designated life sentence prisoner should be released earlier than a prisoner who had been given a determinate sentence for the same crime.
We are conscious of the difficulty which the provisions present for a sentencing judge. In our view, however, the appropriate interpretation should reflect both the terms of the statute and the purpose for which the system was introduced. As we have stressed, that purpose is to determine the punitive period which the prisoner must serve. After that period is over, the prisoner's detention on the ground of the protection of the public must be reviewed by an independent body. 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. Therefore, when specifying the appropriate period in terms of subsection (2), in the normal case the court should decide what period of detention would be appropriate, purely as a punishment for the crime, and should then designate half that period. The effect will be that, once he has served that period, the prisoner will be entitled to have his case referred to the Parole Board. In practice their deliberations take some time, especially if there is a substantial issue as to possible danger to the public. It is therefore unlikely that a discretionary life prisoner will be released immediately after his case has been referred to the Parole Board. For that reason the anomaly to which reference was made in argument may be more apparent than real. We recognise, however, that in specifying a period under Section 2(2) the court is not carrying out a mechanical exercise and that there may be circumstances in which it would be appropriate for the court applying the statutory criteria to specify a period longer than half the equivalent determinate sentence though less than two-thirds of that sentence. That is specifically recognised by the Court of Appeal in Marklew (supra at p. 12). Like the Court of Appeal, we prefer, however, to express no view about the circumstances in which that might be appropriate.
In applying that approach to the present case, we consider that, having regard to the appellant's previous convictions, the appropriate determinate sentence, leaving out of account the element of protection of the public, would have been six years and that the minimum period which he would therefore have required to serve as a punishment for the crime before he could be released on licence would have been three years. In these circumstances, for the reasons which we have given, in the absence of any particular circumstances indicating that a longer period should have been selected, the appropriate period for the sentencing judge to designate would have been three years. We shall accordingly allow the appeal to the extent of quashing the order that subsections (2) and (4) of Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 should apply to the appellant as soon as he had served the period of seven years of his life sentence, and substitute an order that the subsections shall apply to him as soon as he has served three years of his life sentence.