Scottish High Court of Justiciary Decisons

DALE WALKER v. HER MAJESTY'S ADVOCATE [2000] ScotHC 22 (25th February, 2000)

[1] The appellant is Dale Walker. He was born on 24 November 1976. On 4 August 1994 he was convicted on a charge of murder after trial in the High Court at Glasgow. As he was then only seventeen years old, the statutory sentence of detention without limit of time was imposed by the trial judge. Following the passing of and as provided for by section 16(2) of the Crime and Punishment (Scotland) Act 1997 the Lord Justice Clerk issued a certificate certifying his opinion as to the part of the sentence which should be served by the appellant, being a person sentenced, prior to the coming into force of the section, in respect of a murder committed by him before he attained the age of 18 years, before he became entitled to seek early release from custody. The part of the sentence so certified was fixed at 14 years. The appellant has now taken advantage of the provisions for appeal against sentence to argue that the period so certified was excessive.

[2] Mr. Murray on behalf of the appellant submitted that so lengthy a period was excessive and inappropriate having regard to a number of factors. He referred to the age of the appellant at the time of sentence. The appellant had appeared as a first offender. The terms of the social enquiry report before the sentencing judge indicated, as alluded to in the trial judge's report, that the appellant came from a respectable family and that there was no deficiency of upbringing or lack of parental care to account for or to be associated with his criminal conduct. The trial judge had gone on to note that the appellant had a good scholastic record and since leaving school had had several YTS placements, the last of which prior to the murder might have resulted in permanent employment. This was to be set against a family background where the appellant's parents and two elder brothers were employed and where there was no history of offending in the family.

[3] Mr. Murray went on to accept that the assault giving rise to the murder was nasty, vicious and sustained. This is amply borne out by the terms of the trial judge's report which we do not rehearse. Mr. Murray drew attention to a passage in the report in which it is said that the appellant had not consumed much alcohol during the evening of the offence while elsewhere in the report it was noted that the appellant did not abuse alcohol or drugs. Mr. Murray further accepted that a very substantial period of time would have to be served in the light of the trial verdict and of the nature of the crime before the appellant should become entitled to seek release from custody. Nevertheless looking to the whole circumstances the period selected went beyond what was consonant with the crime committed by the appellant and the ends of justice as these matters fell to be judged in the context of section 2 of the 1993 Act. He drew particular attention to a passage at the conclusion of the trial judge's report where it is said that "the frenzied and appalling attack" upon the deceased "must have been due to some psychopathic, sadistic or other trait in (the appellant's) character" of which the trial judge had been given no indication except what could be inferred from the circumstances of the case "but which plainly makes him a very serious danger to the public". Mr. Murray suggested that this passage was in large measure based upon speculation. While the attack appeared out of character, the matter of any predilection to violence was better addressed by the Parole Board after an appropriate period had passed.

[4] We are persuaded that the period of fourteen years is excessive in that the Lord Justice Clerk in selecting that period may have been induced to lay more than due emphasis on what is said by the trial judge in that part of his report which we have quoted, notwithstanding the lack of any previous convictions and the settled circumstances of the appellant's family life. It is not immediately clear on what basis the trial judge expressed the opinion that he did in relation to danger to the public. We bear in mind that the Parole Board is in a position to have regard to such professional, medical or psychiatric material or evidence which it considers appropriate to obtain when considering the issue of release and of any risk to the public that might arise consequent upon release of the appellant from custody. Without in any way diminishing the very serious nature of the crime committed by the appellant but also bearing in mind his age at the time of its commission, we have reached the view that in these circumstances the period of fourteen years selected for the purposes of the certificate under section 16(2) of the 1997 Act was excessive. We have therefore substituted a period of ten years.