Scottish High Court of Justiciary Decisons

Stewart v. Her Majesty's Advocate [2002] ScotHC 121 (06 September 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Marnoch Lord Hamilton	Appeal No: C228/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in NOTE OF APPEAL AGAINST SENTENCE by WILLIAM STEWART Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: M. Scott, Q.C.; Bennett & Robertson

Respondent: A. Turnbull, Q.C., A.D.; Crown Agent

6 September 2002

1. The appellant was after trial convicted on 17 December 1993 on a charge of robbery and murder. He was also convicted of an associated charge of theft and a consequential charge of contravening section 3(1)(b) of the Bail etc. (Scotland) Act 1980. He was sentenced to life imprisonment, later backdated to 30 August 1993.
2. Following the coming into force of the Convention Rights (Compliance) (Scotland) Act 2001, the appellant's case was referred to the High Court for the making of an order under para.13 of the Schedule to that Act, that is to say,

"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."

3. On 11 March 2002 Lord Cameron of Lochbroom, who had presided at the trial of the appellant, determined that the "punishment part" of the appellant's life sentence in terms of these provisions should be fourteen years. The appellant has exercised his right to appeal against that determination.
4. Before coming to the circumstances of the present case it is convenient for us to deal with two submissions which Ms Scott, who appeared for the appellant, made in regard to the general approach to the determination of a "punishment part".
5. In the first place she submitted that it was useful to make a comparison with periods which had been recommended under section 205(4) of the Criminal Procedure (Scotland) Act 1995 and earlier legislation.
6. Section 205(4) states:

"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.

7. Ms Scott pointed out that the factors which led to the making of a recommendation related to some extent to punishment, but were perhaps more usually concerned with the protection of the public (Casey v HM Advocate 1993 S.C.C.R. 453). In that case the Appeal Court stated that it would not expect any recommended period to be less than twelve years. Ms Scott remarked that recommendations not infrequently were for a period of fifteen years, and in some cases considerably more. She submitted that, had a recommendation been made, it would not be expected that the punishment part would exceed the period recommended. Where no recommendation had been made - as in the present case - one would not expect the punishment part to be similar to a period which might have been recommended. If this were the case it would point to the punishment part being excessive.
8. It may be noted that, according to para.14 the Schedule to the 2001 Act, it is not to be a ground of appeal against a punishment part that the court had regard to any recommendation as to the minimum period which should elapse before the Scottish Ministers release the prisoner on licence. However, it does not follow that periods which have been recommended in the past provide a general yardstick by reference to which the length of a punishment part should be determined.
9. First, unlike statutory provisions relating to a punishment part, those relating to the making of a recommendation did not require to address a specific purpose or specific purposes. In the context of the abolition of the death penalty, the making of a recommendation enabled the sentencing judge to make an input, of a general and non-prescriptive kind, into the arrangements for the release of persons convicted of murder. In practice, it was resorted to by reason of the circumstances of the case, and in particular where the crime was particularly brutal or violent or where there was a clearly a considerable risk of repetition, or where both of these factors applied.
10. Secondly, a recommendation was made entirely at the discretion of the sentencing judge. In practice this function was rarely exercised (in less than 5% of the convictions in murder cases). The view was taken by the Appeal Court that unless the circumstances were exceptional, it was undesirable that the hands of the Parole Board should be tied by making such a recommendation (M'Guire v HM Advocate 1995 S.C.C.R. 776).
11. Thirdly, it is important to recognise that the recommendation did not necessarily exhaust what was considered to be required for the punishment of the prisoner. Under section 1(4) of the 1993 Act to which we have already referred, the Scottish Ministers required to consult the Lord Justice General, whom failing the Lord Justice Clerk (and, if available, the trial judge), in regard to the release of life prisoners on licence. Similar provisions were made for consultation by section 61 of the Criminal Justice Act 1967 and section 26 of the Prisons (Scotland) Act 1989. This consultation, which took place at the stage when the release of the prisoner was proposed, was directed to ascertaining whether, in the view of the judge or judges consulted, the period which would have been served at the time when the proposed release took place would be adequate to satisfy the needs of punishment and deterrence.
12. In the second place, Ms Scott submitted that it was open to a court which was concerned with the fixing of a punishment part to consider the practical effect of selecting a particular period, and in particular the effect which its selection would have on the expectation, prior to the coming into force of the 2001 Act, as to when the prisoner would be considered for release. In the present case the third ground of appeal states that the appellant was to be considered for release after ten years, but that as a consequence of the fixing of the punishment part the Parole Board was unable to consider his release until he had served fourteen years. It also states that the appellant had a "legitimate expectation" that he would be released after ten years. In support of her submission Ms Scott relied on a passage in the decision of the Appeal Court in Nicol v HM Advocate 2000 S.C.C.R. 499 which was concerned with an appeal against the determination of the "designated part" of the life sentence of a prisoner who had committed murder when he was under eighteen years of age. Prior to the coming into force of the 2001 Act, this was the only category of case for which part of a life sentence was specified. At para.14 the court observed that the Parole Board would take some time before advising the appellant's release after his case was referred to them. Thus, whereas the trial judge had selected fifteen years as the designated period, the Appeal Court could anticipate that the effect of his order was that the appellant was most unlikely to be released until he had spent, say, seventeen years in custody. Ms Scott submitted that in similar fashion this court should take into account the prejudicial effect of selecting a punishment part which conflicted with the expectation which had been entertained prior to the coming into force of the 2001 Act.
13. In considering this submission it is important to bear in mind that under para. 13 of the Schedule to the 2001 Act, the question is what would have been specified as the punishment part if the new statutory provisions had been in force at the time when the accused was sentenced. It follows that matters which were not known at that time cannot properly be taken into account (cf. Murray v HM Advocate 1999 S.C.C.R. 946 at page 956). Accordingly, in our view, the prior arrangements for considering whether the appellant should be released on licence should not be taken into account in the fixing of a punishment part. We can well appreciate that the latter may well cut across these arrangements. However, the need, if any, for the modification of the new statutory provisions on that account was a matter for the legislature. For the rest, the observations in Nicol v HM Advocate on which Ms Scott relied were concerned with the time which was likely to elapse, under the system which then existed, before effect could be given to the determination of the designated part of the life sentence. For these reasons we consider that the second submission made by Ms Scott is not well founded.
14. We turn now to the circumstances of the murder with which the present appeal is concerned. In his report to the Parole Board which the trial judge wrote shortly after the trial, he stated that the appellant had been drinking with a young man. At about 1.45am they returned together to the appellant's caravan. Both of them were drunk. At some time prior to that night the young man had alleged that the murder victim had made a homosexual advance to him in his house after which the young man had set fire to items in the house. There was evidence that the appellant had reacted to this allegation by stating that he hated "poofs". The victim's house was a short distance from the park in which the appellant's caravan was situated. There was evidence that the deceased habitually left his front door unlocked. Following their return to the caravan, and after a certain amount of conversation there, the appellant left, saying that he was going to "get" the victim. Some time later he returned to the caravan, bringing with him a video cassette recorder, a hi-fi system, a quantity of compact discs and a packet of cigarettes, which formed the items libelled in the charge of theft. These had been taken from the victim's house. He also had with him money which he told the young man that he had taken from the victim's wallet. He said that he had just killed the victim, whom he had found in bed. According to the young man, the appellant described having asked the victim for the number of a banker's key card. When the victim had refused, he (the appellant) had jumped onto the bed, tried to strangle him with his hand and then taken a telephone cord and tied it to the bed. When discovered the next day, the victim was lying on his bed with a ligature formed from the cord of a telephone by the bedside wound round his neck and tied to the bed. The cause of death was ligature strangulation. Beside the bed was found a bank card. A wallet and cards were scattered on the floor nearby. When detained the same afternoon the appellant was interviewed on tape. He admitted having put his hands on the victim's throat and then wrapped a wire round his neck and tied it up to the bed. At interview, and in the witness box, he said that he had gone down to the house for a drink and while in the house the victim, who was then in bed, had made a homosexual advance which led to his assaulting the victim, but he denied that his actions had caused the victim's death.
15. Ms Scott invited this court to make a comparison with periods fixed for the purposes of the "designated period" in the case of murders committed by persons who were then under eighteen years of age. She referred in particular to the decisions in Murray and Nicol.
16. Ms Scott also drew our attention to the recent decision of the Appeal Court in Tomlinson v HM Advocate, 9 May 2002, unreported, in which the court reduced a punishment part from fifteen to twelve years. From para.2 of its opinion it can be seen that this was a case in which the appellant went to the house of the deceased, who was an infirm alcoholic and mostly house-bound. He killed him in a vicious, unprovoked and extended assault with a wooden baton, when in all likelihood the deceased was in no position to defend himself. That assault was followed by prolonged kicking and stamping. The extent of the sprays of blood on the walls and ceiling of the room indicated the savagery of the blows. There were extensive comminuted fractures to the skull and facial bones of the deceased. The court stated that it was not necessary to go further into the details of the injuries, since it was sufficient to say that this was a particularly savage and brutal murder.
17. We are not persuaded that the cases of Murray and Nicol are of particular assistance, since they were concerned with accused who had committed murder when they were under eighteen years of age. We should also add that the consideration which the court took into account in Nicol at para. 14 as to the time which was likely to elapse before the appellant could obtain his release should not be understood as applying under the regime introduced by the 2001 Act. On the contrary, our understanding is that, unless a postponement has been requested, a life prisoner's case will be heard by a Tribunal of the Parole Board within a few days of the expiry of the punishment part.
18. It is plain that there can be a wide variation in the seriousness of a murder case according to the circumstances in which it took place and the circumstances of the offender. In the fixing of a punishment part it is necessary to take into account all known factors which are relevant to aggravation or mitigation. As regards aggravation, for example, conduct suggesting an intention to kill, the use of prolonged or savage violence and the use of a lethal weapon may well be of importance.
19. In the present case the appellant, who at the time of the offence was 30 years of age, deliberately sought out the victim in his house in the middle of the night and strangled him when he refused to give him the means of taking money from his bank account. Ms Scott accepted that she could not maintain that this was a case in which there was no premeditation. On the other hand, she submitted that the robbery was contemporaneous with the murder rather than being its objective. We consider that the trial judge was well entitled to describe the assault on the victim as quite deliberate and of a brutal nature. He did not regard the nature of the appellant's previous convictions as mitigating the deliberate nature of the crime, observing that they included convictions for violence. We are not persuaded that the fixing of a punishment part at fourteen years was excessive.
20. We should add that the factors to which we have referred aggravated the murder, so justifying a longer punishment part than if, say, the appellant and the deceased had met in the street, and there had been an altercation between them in the course of which the appellant had struck the deceased a fatal blow. In such circumstances it is likely that a punishment part not exceeding twelve years would have been appropriate.
21. It follows from what we have said that, on the basis of what is described by the court in Tomlinson v HM Advocate, we would express some reservation in regard to the fixing in that case of the punishment part at as low as twelve years. However, the Opinion of the Court in that case was briefly expressed, and it may be there were circumstances which were relevant to the decision but not set out in the Opinion. In any event it seems clear that the court in that case was not favoured with the detailed arguments which we heard.
22. For all the foregoing reasons the appeal is refused.