Scottish High Court of Justiciary Decisons

PATRICK JOHN NICOL v. HER MAJESTY'S ADVOCATE [2000] ScotHC 54 (18th April, 2000)

[1] The appellant is Patrick John Nicol who pled guilty at the High Court at Perth to a charge of murder, which involved repeatedly striking the deceased on the head and body with a knife or similar instrument, all to his severe injury. The murder took place in Stirling. At the time of the offence the appellant was 17 years of age. The judge sentenced him to detention for life. Because he had been under 18 at the time of the offence, he fell within the terms of Section 2(1)(c) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 as amended by Section 16 of the Crime and Punishment (Scotland) Act 1997. In terms of Section 2(2) of the 1993 Act the sentencing judge therefore made an order that subsections (4) and (6) of Section 2 would apply to the appellant after he had served 15 years of his life sentence. The effect of the order is that the appellant is not entitled to require the Scottish Ministers to refer his case to the Parole Board until he has served 15 years of his sentence in custody. The appellant has appealed against this order.

[2] In presenting the appeal Mr. Quinn proceeded on the basis that the sentencing judge had indeed been correct in the circumstances of the case to specify a period under Section 2(2) since the appellant had been only 17 years of age at the time of the murder (Section 2(1)(c)). But this had obviously not been appreciated by those who drafted certain of the grounds of appeal and we therefore think it right to to take this opportunity to emphasise once more that the making of an order specifying such a period is intended to be a benefit rather than a disadvantage for a person in the appellant's position since it confers a right, which he would not otherwise have, to require the Scottish Ministers to refer his case to the Parole Board. In other words, it confers upon him the right to require the Scottish Ministers to initiate the procedures which may eventually lead to his release. In this connexion we refer to what was said by the court in O'Neill v. H. M. Advocate 1999 S.C.C.R. 300 at p. 305 B - C. As explained in that case, the purpose of an order of this kind is to fix the minimum punitive period which the prisoner must serve before he can be released. We shall have occasion to examine the terms of Section 2(2) in more detail below.

[3] So far as the circumstances of the offence are concerned, the sentencing judge narrates them in his report from which we take the salient facts. The deceased was aged 40 and of no fixed abode. He was an alcoholic who spent his time begging and drinking. It was his custom to spend three or four nights per week in a friend's flat in the block where the appellant lived.

[4] On 6 August 1999 the appellant's holidays began and he had been given his holiday pay. He used part of it to buy a new Rangers football top which he wore that evening. He drank a large amount of alcohol during the afternoon and evening and in the later part of the evening he spent some time in the Falcon Bar where his new top was accidentally burned by a fellow customer. This upset the appellant who became aggressive. Some time after 2 o'clock the following morning the appellant was in the vicinity of his home where he met the deceased. According to the appellant's recollection - not disputed by the Crown - there was some physical contact between the deceased and the appellant, which was unwelcome to the appellant and which he misconstrued as a sexual overture. His reaction was both instantaneous and uncontrolled. He lashed out at the deceased with a substantial kitchen knife. A prolonged assault followed. It appears that the appellant and the deceased moved along Mayfield Street, with the appellant shouting at the deceased to "Move! Move!" The deceased fell to the ground on a number of occasions. A witness heard a man screaming, apparently in fright.

[5] A post-mortem report revealed that the deceased had suffered over 100 stab wounds of varying depth and severity on many different parts of the body. On the left side of his head alone there were 15 separate injuries, while on the other side there were 9 and on the forehead 16. He had 8 injuries to the right ear, eye and cheek, the ear having been almost severed. There was a stab wound to the right lower eyelid and 4 injuries to the left eye. There were numerous injuries to the nose and mouth and injuries to the left cheek. Conspicuous among the injuries were two stab wounds to his neck, one which had cut across the right jugular vein and the other which had transfixed the neck and passed across the pharynx. They had caused inhalation of blood which had led to death. There were injuries to both the front and back of the deceased's trunk and many stab wounds on both of his arms. There were puncture wounds to the right leg, a stab wound to the shin and further wounds to the left leg.

[6] After a while, when he realised what he had done, the appellant went to the house of some friends, one of whom was a police officer. The appellant explained what he had done and that he thought that he had killed someone, but they did not take him seriously. He went home and cleaned himself up. In the morning his mother saw from his demeanour that something serious had happened and she contacted the appellant's father to whom he revealed the whole story. The appellant decided that he ought to go to the police and confess. Which he did. He said to the police officers: "It's better that I come here than wait for you to come for me. I don't know how people who get away with it feel. I've been carrying this for eight to nine hours." The appellant was subsequently interviewed and admitted his involvement. He helped the police to recover the knife.

[7] The appellant has one previous conviction, in the High Court in July 1997 for two charges of assault and two charges of assault and robbery. At the time of that conviction he was 15 years of age and he pled guilty to the offences. He was remitted to the Children's Panel for disposal.

[8] Our summary of the wounds is of itself sufficient to reveal the horrific nature of the attack which was inflicted on the deceased. In these circumstances Mr. Quinn did not in any way seek to persuade us that the appellant's crime had been other than very serious. Indeed it is plain that the appellant subjected the deceased to a prolonged and repeated assault with a knife - an ordeal which must have made his last moments quite terrifying. On the other hand it is not in dispute that the attack was precipitated by a misconception on the appellant's part that the deceased had made some kind of sexual advance. In itself that cannot, of course, in any sense justify the ferocious attack which followed, but it is a matter that we may take into account when judging the overall seriousness of the offence.

[9] In terms of Section 2(1) of the 1993 Act, the appellant is a designated life prisoner because he was under 18 years of age when the murder was committed and the court made an order under subsection (2). That subsection provides:

Section 196(1) of the 1995 Act provides:

[10] In his report the sentencing judge explains that, in specifying fifteen years as the specified part of the sentence under Section 2(2), he took account of the appellant's previous conviction. More importantly, he adds:

[11] It does not appear from his report that the sentencing judge was aware of the decision of this court in Murray v. H. M. Advocate 1999 S.C.C.R. 946. In that case consideration was given to the approach to be adopted in specifying the appropriate period in the case of murder, where the law provides for a mandatory life sentence. The court pointed to the distinction between such cases and cases of discretionary life sentences, such as O'Neill, and indicated that the approach laid down in O'Neill cannot be transposed to cases of murder. Their Lordships then added (1999 S.C.C.R. at pp. 957 F - 958 B):

[12] In his grounds of appeal against the judge's decision in this case, the appellant submitted that the sentencing judge had erred because he had failed to give adequate weight to a number of factors, including the fact that the appellant pled guilty. In his report the sentencing judge indicated that the matters mentioned by the appellant, including this fact, did not appear to him to fall within the range of matters which were relevant in terms of Section 2(2). It may well be that his Lordship was using a popular edition of the Criminal Procedure Legislation which, due to an unfortunate oversight, had failed to record all the amendments made to Section 2 of the 1993 Act by Sections 16 and 62(1) of, and Schedule 1 to, the Crime and Punishment (Scotland) Act 1997. In particular the editors had failed to notice the insertion of paragraph (c) into subsection (2). At all events, it is plain that the sentencing judge was in error in thinking that the fact that the appellant had pled guilty could not be a relevant factor.

[13] On the other hand, in a case of this kind, it is apparent that in itself this would not be a factor of great weight and indeed Mr. Quinn did not attach significance to it in isolation. Rather, he argued that the appellant's contrition after the crime and his determination to go to the police and to confess, were indications that the crime, though terrible in itself, was not aggravated by being the casual violent act of a man of a totally callous disposition. Had the appellant exulted in the act afterwards, that would have made his conduct in committing the offence even more serious; equally the court could take his contrition and anxiety to confess into account as factors in weighing the seriousness of his conduct. In our view, such factors can indeed cast light on the seriousness of an offence for the purposes of Section 2(2)(a) and, to that extent, may therefore, in accordance with the guidance given in Murray, be relevant to the judge's determination of the appropriate period under that subsection.

[14] The question for us is whether, by specifying 15 years as the period which must elapse before the appellant can require the Scottish Ministers to refer his case to the Parole Board, the sentencing judge has imposed a sentence which is excessive. Since it is within judicial knowledge that the Parole Board would certainly take some time before advising the appellant's release after his case was referred to them, we can anticipate that the effect of the sentencing judge's order is that the appellant is most unlikely to be released until he has spent, say, 17 years in custody. Looking at the matter in this way, we have reached the conclusion that the sentence can indeed be regarded as excessive. In forming that view, we have above all taken into account the fact that the appellant was only 17 years of age at the time of the offence. Also relevant, though of less importance, are the facts that the incident occurred as a result of the appellant's misapprehension that the deceased had made an unwelcome sexual advance and that the appellant subsequently showed contrition, insisted on going to the police to confess and pled guilty. None the less, that having been said, the offence was on any view extremely serious and the appellant had a previous conviction in the High Court for an offence involving violence. Taking these factors into account, we are satisfied that the appellant must indeed serve a very substantial period in custody before he can be considered for release.

[15] We shall accordingly allow the appeal, quash the sentencing judge's order specifying a period of fifteen years under Section 2(2) of the 1993 Act and substitute an order specifying a period of twelve years.