APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C228/02
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
NOTE OF APPEAL AGAINST SENTENCE
HER MAJESTY'S ADVOCATE
Appellant: M. Scott, Q.C.; Bennett & Robertson
Respondent: A. Turnbull, Q.C., A.D.; Crown Agent
6 September 2002
"an order specifying a part of the sentence which the court considers would have been specified as the punishment part under sub-section (2) of section 2 of the [Prisoners and Criminal Proceedings (Scotland) Act 1993] had that section, as amended by this Act, applied to that prisoner at the time he or she was sentenced."
Section 2(2) of the 1993 Act, as amended by the 2001 Act, defines "the punishment part" of a life sentence as
"such part as the court considers appropriate to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public), taking into account -
(a) the seriousness of the offence, or of the offence combined with other
offences of which the life prisoner is convicted on the same indictment as that offence;
(b) any previous conviction of the life prisoner; and
(c) where appropriate, the matters mentioned in paragraphs (a) and (b) of
section 196(1) of the 1995 Act."
"On sentencing any person convicted of murder a judge may make a recommendation as to the minimum period which should elapse before, under section 1(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the Secretary of State releases that person on licence."
In accordance with section 53 of the Scotland Act 1998 this function of the Secretary of State is now exercised by the Scottish Ministers. It may be noted that the original statutory provision for a recommendation was made by section 1(2) of the Murder (Abolition of the Death Penalty) Act 1965 which referred to the release of prisoners on licence under section 21 of the Prisons (Scotland) Act 1952. Similar provisions were made thereafter by section 205(2) and, in turn, section 205A(1) of the Criminal Procedure (Scotland) Act 1975 under reference to section 61 of the Criminal Justice Act 1967 and section 26 of the Prisons (Scotland) Act 1989.