Scottish High Court of Justiciary Decisons

Ansari v. Her Majesty's Advocate [2003] ScotHC 17 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C94/02 OPINION OF THE LORD JUSTICE CLERK in REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION of the case of YUSUF ANSARI (formerly known as GEORGE ARCHIBALD CLARK) _______

 

Appellant: Shead, Barr; Bennett and Robertson

Respondent: Turnbull QC, AD; Crown Agent

 

2 May 2002

 

Background

1. The Scottish Criminal Cases Review Commission has referred the case of Yusuf Ansari (the applicant) in terms of section 194B of the Criminal Procedure (Scotland) Act 1995. The applicant was formerly known as George Archibald Clark. He was convicted and sentenced in that name at Edinburgh High Court on 15 October 1996. He pled guilty to two charges. The first was a statutory charge of living on the earnings of prostitution. He was admonished on that charge. The second charge was in the following terms:

"On 17 March 1996 on a road near Bridge of Don, in Dundee, at the house at 39/3 Constitution Street, Edinburgh and elsewhere in Scotland you did assault [the complainer] and in King Street, Aberdeen, did induce her to enter motor car, registered number KRS 50V and in said car at said road near Bridge of Don, assault her, seize hold of her, place your hand over her mouth, place tape over her face and mouth, bind her legs and wrists with tape, push her to the floor of said motor car, cover her with a blanket and convey her forcibly and against her will in said motor car to said house at 39/3 Constitution Street, Edinburgh, carry her into said house and there assault her further, push her, remove her clothing, push her on to a bed, seize hold of her wrists and tie them with towelling belts on to the headboard of said bed, remove your clothing, force her legs apart, insert your finger into her private parts, masturbate in her presence, kiss and handle her breasts, force her to inhale amylnitrate, push her legs over her head, insert a vibrator into her private parts and did rape her."

Lady Cosgrove sentenced the applicant to life imprisonment on this charge and made an order under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 specifying that the relevant part of the sentence should be 12 years. That period was reduced on appeal to 9 years.

2. The Commission considers that there may have been a miscarriage of justice in relation to that order and that it is in the interests of justice that the case should be referred to this court.

The facts

3. The applicant assaulted and abducted an innocent passer-by, a young woman of 23, in the streets of Aberdeen and drove her, bound and gagged, to his house in Leith where he stripped her naked and assaulted and raped her. The circumstances of the rape were perverted and humiliating. They are set out in detail in the judgment of the appeal court (cf. Clark v HM Adv, 1997 SCCR 416, at p. 418). In the plea in mitigation, counsel said that the applicant had indulged in acts of fantasy in his own sex life, in which he acted out sado-masochistic sexual scenes with his partners. On the night in question he had consumed cannabis and cocaine together with alcohol. His only explanation was that he had crossed the line from what he had been in the habit of doing with consent to what he accepted was an outrageous intrusion into the privacy and dignity of another individual.

The applicant's previous convictions

4. The applicant had 13 previous convictions at summary level. These included convictions for assault and robbery, assault, an attempt to pervert the course of justice, and minor offences of dishonesty.

The legislation then in force

5. Section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act) introduced a new regime for the early release of prisoners serving determinate sentences. It provided that a prisoner sentenced to less than four years, a "short-term prisoner" (s. 27(1)), was entitled to be released unconditionally after he had served one-half of his sentence; and that a prisoner sentenced to four years or more, a "long-term prisoner" (ibid.), was eligible for release on licence after he had served one-half of his sentence, if the Parole Board so recommended, and was entitled to release on licence after he had served two-thirds of it.
6. Section 2 of the Act applied to discretionary life prisoners. It provided, so far as material to this case, that

"(1) In this Part of this Act "discretionary life prisoner" ... means a life prisoner -

1. whose sentence was imposed for an offence the sentence for which is not fixed by law; and
2. in respect of whom the court which sentences him for that offence made the order mentioned in subsection (2) below."
2. The order referred to in subsection (1)(b) above is an order that subsections (4) and (6) below shall apply to the life prisoner as soon as he has served such part of his sentence ("the relevant part") as is specified in the order, being such part as the court considers appropriate taking into account -
1. the seriousness of the offence, or of the offence combined with other offences associated with it; and
2. any previous conviction of the life prisoner."

Subsections (4) and (6) related to the obligation of the Secretary of State to release the prisoner on licence if directed to do so by the Parole Board, and to the right of the prisoner to require the Secretary of State to refer his case to the Board. Subsection (5) provided that the Board should not direct the Secretary of State to release such a prisoner unless inter alia it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined. That criterion remains unaltered.

7. Section 2 was a response to the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell v United Kingdom ((1990) 13 EHRR 666). In that case the Court concluded that a discretionary life sentence in English law consisted of a punishment element followed by a protective element and that the legislation governing such sentences left to the Home Secretary the final decision on the prisoner's release. Each of the appellants in that case had completed the punishment period of his sentence. The Court held that when that period had been completed each appellant was entitled under article 5(4) of the Convention to have the question of his continued detention subject to judicial control.
8. The purpose of section 2, and the equivalent legislation for England and Wales, was to require the sentencing judge to specify what the punishment period of a life sentence should be so that the expiry of that period would provide a date at which the prisoner acquired the right to have the question of his release considered by the Parole Board, the Board being considered to constitute a "court" for the purposes of article 5(4) (Weeks v United Kingdom (1988) 10 EHRR 293).

The sentencing judge's application of section 2

9. In view of the circumstances of the offence and the psychiatric and psychological assessments, the sentencing judge decided that the applicant presented a considerable potential danger to women. She therefore decided to impose a life sentence.
10. She specified a relevant part of 12 years in terms of section 2(2) of the 1993 Act because of the nature of the crime and its effects on the victim, and because of the risk to public safety that arose from the fact that the applicant was a danger to women. In her report she said that she regarded the 12-years period as the period that the applicant should spend "in custody."
11. In applying section 2(2) the sentencing judge therefore took account of public protection and safety and did not take account of the prospects of early release that would be open to a prisoner serving a determinate sentence for a similar offence.

The appeal

12. The applicant appealed against both the imposition of the life sentence and the assessment of the relevant part. The court refused the appeal against the imposition of the life sentence, but sustained it to the extent of reducing the relevant part (Clark v HM Adv, supra).
13. The court held that, when fixing the relevant part, the sentencing judge had erred in taking into account the risk that the applicant posed to the public. That consideration was relevant to the imposition of the life sentence, but had to be disregarded in the fixing of the relevant part. In substituting a period of 9 years, the court proceeded, like the sentencing judge, on the basis that the period fixed was the period that the applicant would serve "in custody" (at p. 422C-D) before any question of early release could arise.
14. However, like the sentencing judge, the court did not take into account the early release provisions that applied to a prisoner serving a determinate sentence for the same offence. Counsel for the then appellant had not submitted that the court should do so.

The 1997 Act

15. Soon after the appeal was decided, section 2 of the 1993 Act was amended by section 16 of the Crime and Punishment (Scotland) Act 1997 (the 1997 Act). The 1997 Act prospectively extended the scope of the section to cover two further types of life prisoners that are not relevant to this case. A life prisoner of any of these three types was referred to in section 2(1) as a "designated life prisoner." The "relevant part" specified in an order made under section 2(2) was renamed the "designated part" and a third factor was added to those that were to be taken into account in the assessment of the designated part, namely the tendering of a plea of guilty (cf. Criminal Procedure (Scotland) Act 1995 (the 1995 Act), s. 196).
16. Section 2(2) in its amended form, so far as relevant to this case, was as follows:

"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 -

1. the seriousness of the offence, or of the offence combined with other offences associated with it;
2. any previous conviction of the designated life prisoner; and

(c) where appropriate, the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act."

This is the wording that applied when the same appeal court considered the case of O'Neill v HM Adv (1999 SCCR 300).

O'Neill v HM Adv

17. In O'Neill the appellant pled guilty to an assault with a knife upon a stranger. He had a previous conviction on indictment for assault to severe injury and permanent disfigurement, and two previous High Court convictions for inter alia attempted murder and assault. He had committed the offence libelled while on licence from a sentence imposed for an offence that he had committed while also on licence.
18. The sentencing judge imposed a discretionary life sentence and made an order under section 2(2) to the effect that the designated part of the sentence should be 7 years. The sentencing judge said in his report that the designated part that he fixed was "relatively short." Although the injury inflicted was not grave and although the appellant had pled guilty, his record was such that the sentencing judge considered that he was bound to impose a significant period. He said that, in addition, he considered that the 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.
19. The appellant appealed against both the life sentence and the assessment of the designated part. The appeal court refused the appeal against the life sentence but allowed it in relation to the designated part. It held that, as in the applicant's case (Clark v HM Adv, supra), the sentencing judge had erred when, in assessing the designated part, he had taken into account the general need to protect the public (at pp. 306G-307B).
20. The appeal court prescribed the method for determining the designated part with guidance from English authority. It held that, in the assessment of the minimum period that the discretionary life sentence prisoner would actually serve as a punishment for his crime before he could be released, that prisoner should not be at a disadvantage when compared with a prisoner serving a determinate sentence for a similar crime. The court, when fixing the designated part, should therefore keep in view that the determinate sentence prisoner would be eligible for release on licence after one-half of his sentence, and entitled to it after two-thirds. Apart from the exceptional case where imprisonment for the whole of life would be the appropriate punishment period (1993 Act, s. 2(3)), a case which no longer applies, comparative justice required that the designated part should bear a fair and reasonable relationship to the minimum period that a determinate sentence prisoner would have to serve in a comparable case, there being disregarded the special requirement of public protection that had led to the life sentence (at p. 307C-F). Since a long-term prisoner could be released on licence after serving one-half of a determinate sentence, if the Parole Board so recommended, the court when specifying the designated part should normally decide what period of detention would be appropriate purely as a punishment for the crime and then designate one-half of that period. There might be circumstances in which it would be appropriate for the court to assess the designated part at up to two-thirds of that period, that being the period after which a long-term prisoner was entitled to be released on licence; but the court preferred to express no view about the circumstances in which that might be appropriate (at p. 308C-F).
21. The court took into account the decision of the Court of Appeal in R. v Marklew and Lambert ([1999] 1 Cr App R (S) 6). That was a decision on the corresponding English legislation (Criminal Justice Act 1991, s. 34(2)(b)) which at that time, unlike section 2(2) as then worded, expressly required the court to take into account the early release provisions that applied to determinate sentence prisoners.
22. In O'Neill the court, leaving out of account the element of protection of the public, assessed the appropriate determinate sentence at 6 years and, in the absence of any special circumstances, assessed the designated part at one-half of that period. It is apparent, however, that that proportion was arrived at on the understanding that it set no more than a minimum period that the prisoner would serve by way of punishment.

The 2001 Act

[23] Section 2 of the amended 1993 Act was further amended by section 2 of the Convention Rights (Compliance) (Scotland) Act 2001 (the 2001 Act) with effect from 8 October 2001 (cf. 2001 SSI No. 274). From the former category of designated life prisoner there was excluded the case of a prisoner sentenced for a murder committed by him before he attained the age of 18 years, the former section 2(1)(c), and to it was added the case of a mandatory life prisoner. In consequence of these amendments the category of designated life prisoner was replaced by that of "life prisoner" and the "designated part" was renamed the "punishment part." Section 2(2) is now in the following terms:

"(2) The order referred to in subsection (1) above is an order that subsections (4) and (6) below shall apply to the life prisoner as soon as he has served such part of his sentence ('the punishment part') as is specified in the order, being 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;

(aa) in the case of a life prisoner to whom paragraph (a) of subsection (1)

above applies-

(i) the period of imprisonment, if any, which the court considers

would have been appropriate for the offence had the court not sentenced the prisoner to imprisonment for life for it;

(ii) the part of that period of imprisonment which the court

considers would satisfy the requirements of retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public); and

(iii) the proportion of the part mentioned in sub-paragraph (ii)

above which a prisoner sentenced to it would or might serve before being released, whether unconditionally or on licence, under section 1 of this Act;

(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."

Although mandatory life prisoners are now brought within the scope of section 2, the amended criteria set out in subsection (2) apply only to discretionary life prisoners.

23. The new paragraph (aa) therefore explicitly raises the considerations with which the court was concerned in O'Neill (supra). It makes clear that in the case of a discretionary life sentence, the assessment of a period of detention that would satisfy the requirements of retribution and deterrence is now exclusively a matter for the court. That leaves the important question as to the extent of the court's discretion in the assessment of that period. I shall return to this point.
24. In O'Neill the court reached its decision by reference to English case law. Since the 2001 Act, however, the Scottish courts must start with the amended wording of the subsection. Since that is materially different from the wording of the English provisions that were considered in O'Neill, I think that the English case law now gives us only limited assistance.

The Commission's referral

[26] The Commission's reasons for this referral are as follows:

"24. The Commission ... has come to the view that, on the basis of O'Neill, there may have been a miscarriage of justice in relation to the sentence that the applicant received. The Commission notes that no further representations were made in relation to the applicant's conviction or the imposition of a life sentence, and it remains of the view that there was no miscarriage of justice in respect of those matters.

25. When deciding the applicant's appeal, the High Court stated:

'We must therefore decide what period falls to be specified by reference to the seriousness of the offence. Bearing in mind that the period specified is a period which the appellant will require to serve in custody, we take the view that the appropriate period in this case is one of nine years.'

26. It was held in O'Neill that the exercise of determining the designated part in terms of s 2(2) was distinct from the exercise of determining the appropriate determinate sentence for a similar crime. When a determinate sentence was imposed, the minimum period spent in custody would be one half of the sentence. That being so, the minimum period specified in the case of a life sentence should normally be half of what would be regarded as an appropriate determinate sentence for the offence, although there might be cases in which a period of more than half but not less than two thirds of such a sentence would be appropriate.
27. The Commission notes that in fixing the period in the applicant's case the court made specific reference to the period he would require to serve in custody. Nevertheless the Commission is of the view that that period may have been fixed without taking into account the considerations set out in O'Neill. O'Neill was not decided until some time after the applicant's appeal, and no reference was made in the applicant's appeal to the considerations which led to the decision in O'Neill. In light of these considerations, the period fixed in the applicant's case reflects a determinate sentence of eighteen years, and the Commission is of the view that such a sentence might well be regarded as excessive even for a crime as serious as that committed by the appellant."

 

Submissions for the parties

25. Counsel for both parties accepted that the decision of the appeal court in this case was erroneous and that the assessment of what was then the "relevant part" should have been made in accordance with the principles later set out in O'Neill. They agree that the sentence in this case ought to have been backdated (Elliott v HM Adv (No. 2), 1997 SLT 1229) to 18 March 1996. They also agree that the decision in this referral should be made on the basis of the current legislation.
26. Counsel for the applicant did not argue that the period of 9 years would have been excessive as a determinate sentence in this case if the protection of the public had been left out of account; but he submitted that the relevant part should have been assessed by adjusting the figure of 9 years to a figure in the range of one-half to two-thirds of it. O'Neill established that one-half was the norm. Any higher proportion would be justified only in extreme circumstances. The applicant had only a minor record with no analogous previous convictions. He had pled guilty. If we were minded to adopt the 9-years figure under the current legislation, we should assess the punishment part at a period of 41/2 years.
27. The advocate depute submitted that section 2(2) in its present form, read as a whole, confers on the court an unfettered discretion to assess the punishment part at any figure at all. If that submission were not to be accepted, the punishment part should be set at one-half to two-thirds of whatever determinate period the court assessed as a comparator.

Conclusions

28. It is not disputed that the decision of the appeal court in this case was unsound. The relevant part of the applicant's sentence should have been assessed with the early release provisions in view. We must therefore quash the sentence in terms of section 194B(1) of the 1995 Act to the extent that it specified a relevant part of 9 years.
29. We now have to consider the matter afresh; but we must do so in accordance with the current legislation (cf. 2001 Act, Sched, Part 2, para 29). We therefore have to fix a punishment part in terms of the present section 2(2).
30. Before the 1993 Act, the imposition of any determinate sentence in Scotland was based on the straightforward principle that the court assessed the appropriate sentence having regard to all the circumstances of the case, and left it to the minister to decide consequential questions as to early release. That principle duly observed the separation between the judicial and the executive functions in the penal system. The present legislation compromises that principle by requiring the court to take into account for discretionary life sentences considerations of early release that are applicable to determinate sentences. It also appears to assume that the protection of the public represents the sole criterion on which the Parole Board will in due course make any recommendation on early release. That element is of course an essential consideration for the Board (cf. s. 2(5); Parole Board (Scotland) Rules 2001 (SSI No. 315) (the 2001 Rules), r. 8(c)); but it is not the exclusive consideration. In making its recommendations about any prisoner the Board may take into account "any matter which it considers to be relevant" (2001 Rules, rule 8), including "the nature and circumstances of any offence of which that person has been convicted or found guilty by a court" (rule 8(a)), "that person's conduct since the date of his or her current sentence or sentences" (rule 8(b)) and "what that person intends to do if he or she were to be released ... and the likelihood of that person fulfilling those intentions" (rule 8(d)). While, in the case of a discretionary life sentence, it is now exclusively for the court to determine the period that would satisfy the requirements of retribution and deterrence, those other criteria remain relevant to the proportion likely to be served of the hypothetical determinate sentence with which a comparison has to be made. These complexities compound the basic problem that the legislation requires the court to engage, in the first instance, in the unsatisfactory exercise of seeking to eliminate from the notional determinate sentence the element attributable to the protection of the public. I shall refer to that as the risk element.
31. In imposing a determinate sentence in a case like this, the sentencing judge would not assess specific periods for retribution, deterrence, protection of the public and so on, and then aggregate them. He would simply use his judgment to decide what, in light of the circumstances overall, should be the appropriate sentence. In some cases, where the likelihood of the accused's re-offending was remote, the risk element would scarcely come into account. Under the present legislation, the attempt to ascribe a value to that element in terms of years or months is a new exercise demanded of the judiciary for which there is little, if any, guidance in past sentencing practice.
32. To determine the punishment part of a life sentence, the court has to assess that part of the sentence that will be appropriate to satisfy the requirements of retribution and deterrence, the period of confinement, if any, that may be necessary for the protection of the public being disregarded (s. 2(2)). In making that assessment, the court is required to take into account the seriousness of the offence, or of the offence combined with other offences of which the prisoner is convicted on the same indictment (s. 2(2)(a)); the previous convictions, if any (s. 2(2)(b)); and, where appropriate, the considerations affecting the tendering of a guilty plea (s. 2(2)(c)). In the case of a discretionary life sentence, the court must take into account three explicit considerations added by the 2001 Act, namely the determinate sentence, if any, that would have been appropriate if the life sentence had not been imposed (s. 2(2)(aa)(i)); the part of that determinate sentence that would satisfy the requirements of retribution and deterrence, the period of confinement necessary for the protection of the public, if any, being disregarded (s. 2(2)(aa)(ii)); and the proportion of that part which a prisoner sentenced to it would or might serve before being released, whether unconditionally or on licence (s. 2(2)(aa)(iii)).
33. In this latter exercise, the first step should be relatively straightforward. The imposition of a discretionary life sentence is an exceptional disposal justified only where the accused presents a serious threat to the safety of the public or where that sentence is in his own best interests (Cronin v HM Adv, 1993 SCCR 158). When the court imposes such a sentence, it should not be unduly difficult for the court to assess what determinate sentence it would have imposed, having regard to the general considerations set out in section 2(2)(a), (b) and (c), if a discretionary life sentence had not been available. I shall refer to that as the notional determinate sentence.
34. The next step is to deduct from the notional determinate sentence the "risk" element. This is the new exercise to which I have referred.
35. The third step is to fix a proportion of the notional determinate sentence, as now reduced, in the light of the early release provisions that would be available to a prisoner sentenced to a determinate sentence for the same offence. At this stage in the exercise, the court is obliged to take into account the periods on completion of which the determinate sentence prisoner would either be eligible for release or entitled to release under section 1 (s.2(2)(aa)(iii)). In the rare case where the assessment is made by reference to a short-term sentence, the court must take into account the entitlement of the short-term prisoner to unconditional release after one-half of the sentence (s. 1(1)). But in most cases, as in this case, the calculation will be made by reference to a long-term sentence. In such cases, the court must take into account the eligibility of the prisoner to release on licence after one-half of the sentence, if the Parole Board so recommend (s. 1(3)), and his entitlement to release after two-thirds (s. 1(2)).
36. In my view, the reference in sub-paragraph (aa)(iii) to the outcomes possible under section 1 in the case of a long-term prisoner points against the court's automatically fixing the proportion by reference to the earliest possible release date that that prisoner could be given. The reference point in sub-paragraph (aa)(iii) is not the date at which the prisoner's case would become eligible for consideration by the Parole Board. It is the period that the determinate sentence prisoner "would or might serve before being released."
37. In the case of the individual determinate sentence prisoner that period will be subject to many contingencies. Some may be personal to the prisoner himself. Some may emerge during the course of the sentence. For these reasons, I consider that it would have been preferable if the legislature had required the sentencing judge to fix an appropriate retribution and deterrence period without regard to considerations of early release that can be better assessed in due course by the Parole Board or the Executive, or both, on up to date information.
38. As it is, in applying sub-paragraph (aa)(iii) the sentencing judge can proceed only on the information then before him. In carrying out this difficult exercise, the sentencing judge will normally fix the appropriate proportion within the limits of one-half and two-thirds to which section 1 refers; but he is not constrained within these limits in every case. The sentencing judge is entitled to take into account certain objective and immediately ascertainable considerations. Not the least of these, in my view, are the gravity of the offence and the circumstances in which it was committed. The gravity of the crime is likely to be a significant factor in a decision regarding the early release of a long term determinate sentence prisoner (cf. 2001 Rules, rule 8, supra). It is therefore proper, in my opinion, that it should also be a significant factor in a decision as to the proportion that is appropriate for the assessment of the punishment part of a discretionary life sentence. In a case of great gravity, in my view, the proportion may be higher than two-thirds.
39. With these principles in mind, I turn to the assessment of the punishment part in this case. I should say at the outset that the idea that the applicant should become eligible for early release after having served 41/2 years is an affront to justice. This was a dreadful crime. Both the sentencing judge and the judges of the appeal court considered that the applicant should spend a lengthy period in custody. I agree with them. The sentencing judge considered that that period should be 12 years. The appeal court considered that it should be 9 years. In my opinion, a determinate sentence in this case, assessed on the basis of retribution and deterrence and with the exclusion of the risk element, would have been severe. Furthermore, since the question of retribution and deterrence again comes into consideration in the assessment of the appropriate proportion, I consider that a high proportion should be set in this case.
40. Taking all of these considerations into account, I conclude that it would be appropriate to set the notional determinate sentence, under deduction of the risk element, at a period of 13 years and to fix the punishment part at 9 years.

Disposal

41. I propose to your Lordships that we should make a formal finding that in assessing the now obsolete designated part of the applicant's sentence at 9 years, the appeal court erred in failing to take into account the early release provisions of the 1993 Act. However, in applying the current legislation I propose that we should assess the punishment part at the same period. I therefore propose that we should quash that part of the appeal court's decision and substitute a punishment part of the same length. As the parties agree, the life sentence should have been backdated to the date when the applicant was first taken into custody. I propose therefore that we should further vary the appeal court's decision by specifying that the sentence should run from 18 March 1996.
Ansari v. Her Majesty's Advocate [2003] ScotHC 17 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C94/02 OPINION OF LORD KIRKWOOD in REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION of the case of YUSUF ANSARI (formerly known as GEORGE ARCHIBALD CLARK) _______

 

 

Appellant: Shead, Barr; Bennett and Robertson

Respondent: Turnbull QC, AD; Crown Agent

2 May 2003

42. I am in complete agreement with the Opinion of your Lordship in the chair and, for the reasons fully set out in that Opinion, I agree that the punishment part of the applicant's sentence should be fixed at 9 years, backdated to 18 March 1996.
Ansari v. Her Majesty's Advocate [2003] ScotHC 17 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C94/02 OPINION OF LORD MARNOCH in REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION of the cause of YUSUF ANSARI (formerly known as GEORGE ARCHIBALD CLARK)   _______

 

 

Appellant: Shead, Barr; Bennett & Robertson

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

2 May 2003

43. I respectfully agree in its entirety with the opinion delivered by your Lordship in the chair. In particular, I agree with your Lordship's observations regarding the difficulties presented to judges by the terms of the present legislation. Not only must they embark on the novel exercise referred to by your Lordship but at the same time they must second guess - I can think of no better expression - the actions which would be taken by another body, the Parole Board, in regard to the release of prisoners sentenced to fixed terms of imprisonment. In that connection it seems to me obvious that the wording of Rule 8 of the Parole Board (Scotland) Rules 2001 requires the Board to have regard to matters other than just the risk of re-offending when deciding whether to release on licence prisoners serving determinate sentences. These include the matters specifically referred to by your Lordship and, in my opinion, the only reasonable assumption which can be made is that, in the exercise of its broad discretion, the Board has regard to all of these matters including, in particular, the nature and circumstances of the offence or offences in respect of which the prisoner is at the time being detained. Insofar as Lord Reed takes any different view I must, with respect, differ from him.
44. It follows from the above that while the overall objectives of the legislation may be clear enough the means of implementing it are far from straightforward. The court must, of course, do its best but I doubt that in the result there can be any exactitude.
45. In the present case, for all the reasons given by your Lordship in the chair, I am satisfied that the punishment part of the applicant's sentence falls properly to be fixed at nine years.

 

Ansari v. Her Majesty's Advocate [2003] ScotHC 17 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C94/02 OPINION OF LORD REED in REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION of the case of YUSUF ANSARI (formerly known as GEORGE ARCHIBALD CLARK) _______

 

Appellant: Shead, Barr; Bennett and Robertson

Respondent: Turnbull QC, AD; Crown Agent

2 May 2003

46. This case raises an important issue as to the interpretation of section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as amended). The background to the case is set out in the Opinion of your Lordship in the chair; and I gratefully adopt your Lordship's account of these matters. As I have come to a different conclusion from a majority of your Lordships, it is appropriate that I set out my own reasons in full. It may be worthwhile for me to begin by discussing in greater detail the background to the 1993 Act and its successive amendments.
47. The release of prisoners from custody prior to the expiry of the sentence imposed by the court has a long history. It existed in the days of transportation, in the form of the "ticket of leave" granted to offenders, under the Royal Prerogative, as a reward for good conduct. When imprisonment replaced transportation as the principal form of punishment for serious offenders, release on ticket of leave was replaced by release on licence. That system was replaced in the 1930s by the remission system. Remission was introduced as a reward for good behaviour, but evolved in practice into a system under which one third of any determinate sentence was automatically deducted at the outset: a deduction which could only be lost as a result of breaches of prison discipline. In 1968 a system of parole was superimposed on the remission system, by virtue of Part III of the Criminal Justice Act 1967. Under section 60 of the 1967 Act, a prisoner serving a determinate sentence was eligible for parole after serving one third of the sentence or twelve months, whichever was the longer. Parole was also a method by which prisoners sentenced to indeterminate sentences could be released from custody. The system of parole for such prisoners operated differently from that which applied to determinate sentence prisoners. Under section 61 of the 1967 Act, the Secretary of State was empowered to release on licence a prisoner serving an indeterminate sentence, but only if recommended to do so by the Parole Board, and only after consultation with the Lord Justice General together with the trial judge, if available. In practice, after approximately four years of the sentence, the case was considered by the Preliminary Review Committee, which was an administrative body. It recommended a date for the first formal review of the case. The Secretary of State then decided the timing of the first review in the light of the Committee's recommendation. At that point the case was considered by the Local Review Committee, which reported to the Secretary of State. If it recommended the grant of a provisional release date, and the Secretary of State accepted the recommendation, the Lord Justice General and the trial judge (if available) would be consulted. If they also considered release appropriate, the case would be referred to the Parole Board for its recommendation. The Secretary of State would then take the final decision.
48. That, in outline, was the system which operated in Scotland prior to the 1993 Act, as described in the Report of the Kincraig Committee on Parole and Related Issues in Scotland (Cm. 598, 1989). It is necessary also to say something about the system which operated in England and Wales as described in the cases mentioned below, since the development of the law in Scotland has been influenced by developments south of the Border. Remission operated in England and Wales in much the same way as in Scotland, evolving into a system of automatic remission of the final one third of the sentence (increased in 1987 to one half, in relation to prisoners serving sentences of twelve months or less). The legal framework of parole was identical to that in Scotland, being based on the same provisions of the 1967 Act. As in Scotland, prisoners serving determinate sentences were eligible for parole after one third of the sentence or twelve months, whichever was the longer. In relation to prisoners serving indeterminate sentences, on the other hand, the practice in England developed differently from in Scotland. Until 1983 the English system was broadly similar to that in Scotland. Under arrangements introduced in 1983, however, the Lord Chief Justice and the trial judge were consulted after the prisoner had served about three years, and were asked for their views on "the period of detention necessary to meet the requirements of retribution and general deterrence". This period was described as the "tariff". It appears that, in the case of mandatory life prisoners, this expression was understood to mean "how long a prisoner should remain in custody as punishment for murdering someone" (R. v. Secretary of State for the Home Department, ex parte Handscomb (1988) 86 Cr. App. R. 59, at p. 79 per Watkins L.J.). In the case of discretionary life prisoners, on the other hand, the expression was understood to mean "the appropriate fixed-term punishment for the crime in the absence of the mental element, the existence of which led to the life sentence" (ibid.). The first review was then fixed for a date after the expiry of the period recommended by the judges. In the case of ex parte Handscomb, in 1987, this system, as applied to discretionary life prisoners, was criticised in two respects. First, the delay in consulting the judges until three years had passed (by which time a prisoner who was suitable for parole would have served the equivalent of a nine year sentence) was held to be unreasonable. Secondly, it was said that remission ought to be taken into account in determining the period to be served before the first review: since the date of the first review was fixed on the basis of a notional determinate sentence, allowance should be made for the remission which would have applied if a determinate sentence had in fact been imposed.
49. In the light of the decision in ex parte Handscomb, the system of parole applied to discretionary life prisoners was altered in 1987, the new system being announced in a Parliamentary Written Answer (reproduced in the judgment of the European Court of Human Rights in Thynne, Wilson and Gunnell v. United Kingdom, (1990) 13 E.H.R.R. 666, at para. 59). Under the new system, the trial judge was to write to the Secretary of State at the outset of the sentence,

"giving his view on the period necessary to meet the requirements of retribution and deterrence. This view will be related to the determinate sentence that would have been passed but for the element of mental instability and/or public risk which led the judge to pass a life sentence and will also take account of the notional period of the sentence which a prisoner might expect to have been remitted for good behaviour had a determinate sentence been passed".

The date of the first review of the prisoner's case would then be fixed in accordance with the trial judge's view of the requirements of retribution and deterrence.

50. In July 1987 a committee under the chairmanship of Lord Carlisle was established to review parole and related issues in England and Wales, and in December 1987 a separate committee, under the chairmanship of Lord Kincraig, was established to conduct a similar review for Scotland. Their recommendations, published respectively in 1988 and 1989, provided the basis of the subsequent reform of the English and Scottish systems for the early release of prisoners serving determinate sentences. In relation to prisoners serving discretionary life sentences, on the other hand, reform was heavily influenced by the decision of the European Court of Human Rights in Thynne, Wilson and Gunnell. That decision dealt with applications by discretionary life prisoners in England. After examining the reasons for the imposition of discretionary life sentences under English law (which appear to have been substantially the same as under Scots law), and the system of parole applied to such prisoners (as summarised above), the European Court said (at para. 73):

"73. [T]he discretionary life sentence has clearly developed in English law as a measure to deal with mentally unstable and dangerous offenders; numerous judicial statements have recognised the protective purpose of this form of life sentence. Although the dividing line may be difficult to draw in particular cases, it seems clear that the principles underlying such sentences, unlike mandatory life sentences, have developed in the sense that they are 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. This view is confirmed by the judicial description of the 'tariff' as denoting the period of detention considered necessary to meet the requirements of retribution and deterrence."

In the case of all the applicants the punitive element of the sentence had expired. In that situation, they were entitled to have a court or tribunal consider whether their continued detention was justified, in accordance with article 5(4) of the European Convention on Human Rights. The European Court said (at para. 76):

"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 their 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."

In its earlier decision in Weeks v. United Kingdom, (1988) 10 EHRR 293, the court had held that the Parole Board could be regarded as a "court" for these purposes.

51. It was against this background that Parliament enacted the Criminal Justice Act 1991, which reformed the law in England and Wales. In relation to prisoners serving determinate sentences of four years or more ("long-term prisoners"), the 1991 Act contained two provisions which are relevant in the present context. Section 33(2) provided:

"(2) As soon as a long-term prisoner has served two-thirds of his sentence,

it shall be the duty of the Secretary of State to release him on licence."

Section 35(1) provided:

"(1) After a long-term prisoner has served one-half of his sentence, the

Secretary of State may, if recommended to do so by the [Parole] Board, release him on licence."

Under these provisions, therefore, a long-term prisoner was eligible for release on licence (subject to the recommendation of the Parole Board) after serving one half of his sentence, and was entitled to be released on licence after serving two thirds of his sentence. In relation to discretionary life prisoners, section 34(1) of the Act conferred on the sentencing court the power to provide that section 34 should apply to the prisoner as soon as he had served a part of his sentence specified in the order ("the relevant part"). After the prisoner had served the relevant part, he was entitled to require the Secretary of State to refer his case to the Parole Board. In the event that the Parole Board directed the prisoner's release, the Secretary of State was then obliged to release him on licence; but the Parole Board could not give such a direction unless it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined. In relation to the fixing of the relevant part, section 34(2) provided:

"(2) A part of a sentence so specified shall be such part as the court considers appropriate taking into account -

(a) the seriousness of the offence, or the combination of the offence and

other offences associated with it; and

(b) the provisions of this section as compared with those of section 33(2)

above and section 35(1) below."

Section 34 thus had the effect of dividing a discretionary life sentence into a "relevant part" whose length was determined by the court and a remaining part whose length was determined by the Parole Board. In determining the length of the "relevant part", the court was required to take into account, in addition to the seriousness of the offence, a comparison between the provisions governing the release of discretionary life prisoners and those applicable to prisoners who received determinate sentences.

52. The law of Scotland was reformed two years later, by the 1993 Act. Section 1 of the Act provided for the early release of prisoners serving determinate sentences of imprisonment, and also for the release of life prisoners who were not discretionary life prisoners. In particular, by virtue of section 1(1) of the Act, a short-term prisoner (i.e. a prisoner serving a sentence of less than four years imprisonment) was entitled to be released unconditionally as soon as he had served one half of his sentence. By virtue of section 1(2) of the Act, a long-term prisoner (i.e. a prisoner serving a sentence of four or more years imprisonment) was entitled to be released on licence as soon as he had served two thirds of his sentence, unless already released. By virtue of section 1(3) of the Act, the Secretary of State had a discretionary power to release on licence a long-term prisoner who had served one half of his sentence if the Parole Board recommended his release. By virtue of section 1(4), the Secretary of State had a discretionary power to release on life licence a life prisoner who was not a discretionary life prisoner, if recommended to do so by the Parole Board. These provisions were similar to the corresponding provisions of the 1991 Act. Although section 1 of the 1993 Act has been subject to amendment, the amended provisions, as presently in force, provide in all material respects for the same scheme in relation to prisoners serving determinate sentences as the original provisions (subject to the qualification that the effect of section 1(3) was modified in 1995, in relation to long-term prisoners serving sentences of less than 10 years imprisonment, so as to entitle such a prisoner to be released on licence after serving one half of his sentence if the Parole Board recommends his release: the Prisoners and Criminal Proceedings (Scotland) Act 1993 (Release of Prisoners etc.) Order 1995). The scheme governing life prisoners who are not discretionary life prisoners, on the other hand, has undergone fundamental alteration as explained below.
53. Section 2 of the 1993 Act, as originally enacted, provided for the release of "discretionary life prisoners" as defined in section 2(1), i.e. life prisoners whose sentence was imposed for an offence the sentence for which was not fixed by law, and in respect of whom the court had made an order of the kind mentioned in section 2(2). By virtue of section 2(4), such a prisoner was entitled to be released on licence if the Secretary of State was directed to release him by the Parole Board; but the Parole Board could not give such a direction unless it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined. By virtue of section 2(6), the prisoner was entitled to have his case referred to the Parole Board at any time, where that subsection applied. Section 2(4) and (6) however applied to such a prisoner only after he had served a part of his sentence ("the relevant part") specified in the order made by the sentencing court under section 2(2). Section 2 thus envisaged that a court which imposed a life sentence, other than in circumstances where such a sentence was mandatory, could also determine the period of imprisonment which had to be served before the prisoner would be entitled to have his case referred to the Parole Board.
54. Section 2(2) of the 1993 Act, as originally enacted, was in these terms:

"The order referred to in subsection (1)(b) above is an order that subsections (4) and (6) below shall apply to the life prisoner as soon as he has served such part of his sentence ('the relevant 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; and

(b) any previous conviction of the life prisoner."

55. Comparing sections 1 and 2 of the 1993 Act with the corresponding provisions of the 1991 Act, it is plain that the Scottish provisions were modelled on the English provisions; and, generally speaking, the provisions of the 1993 Act as originally enacted followed the English provisions closely. A comparison of section 2(2) of the 1993 Act with section 34(2) of the 1991 Act however reveals two differences. The first is that the 1993 Act required the sentencing court to take account of previous convictions, whereas the 1991 Act contained no such requirement. This difference is explicable in terms of the general approach of the 1991 Act to previous convictions, exemplified by the embargo imposed by section 29(1):

"(1) An offence shall not be regarded as more serious for the purposes of any provision of this Part by reason of any previous convictions of the offender or any failure of his to respond to previous sentences."

This approach was not adopted in the 1993 Act, and there is therefore no difficulty in understanding why that Act, unlike the 1991 Act, required previous convictions to be taken into account in fixing the "relevant part". The second difference is that the 1993 Act, unlike the 1991 Act, did not contain any provision requiring the sentencing court, in fixing the "relevant part", to take account of the early release provisions applicable to prisoners serving determinate sentences: section 34(2)(b) of the 1991 Act had no equivalent in section 2(2) of the 1993 Act.

56. Section 2(2) of the 1993 Act was considered by this court in the case of Clark v. H.M. Advocate, 1997 S.C.C.R. 416, which was an appeal against sentence brought by the same person whose case, under his present name of Yusuf Ansari, has now been referred to the court by the Scottish Criminal Cases Review Commission. Lord Justice General Rodger, delivering the Opinion of the Court, noted that the sentencing judge had explained the factors which she had taken into account in specifying a period of 12 years, and continued (at page 622):

"One set of factors related to the seriousness of the offence and they were certainly matters to which she was entitled to have regard under subsection (2)(a). But she also took account of the risk which the appellant posed to the public because he is a danger to women. That was, of course, a relevant factor in selecting a sentence of life imprisonment. But equally clearly, as the terms of the subsection show, it is not a matter which the sentencing judge was entitled to take into account in determining the period to be specified under section 2(2). That period is one which relates to the punishment of the offender rather than to the protection of the public. The trial judge therefore erred in her approach to this matter. We must therefore decide what period falls to be specified by reference to the seriousness of the offence. Bearing in mind that the period specified is a period which the appellant will require to serve in custody, we take the view that the appropriate period in this case is one of nine years."

57. A number of observations might be made about the court's approach as explained in this passage. First, the court treated subsections (2)(a) and (b) as being exhaustive of the matters which the court was entitled to take into account. Subsection (2)(b) not being regarded as significant in the case of Clark (the appellant having no analogous previous convictions), the period had to be "specified by reference to the seriousness of the offence". That interpretation of section 2(2) is consistent with the general principle of statutory interpretation, expressio unius est exclusio alterius: in other words, where a general expression is used which is apt to cover a variety of matters, and certain of those matters are then specifically mentioned, it is presumed (in the absence of indications to the contrary) that only the specified matters are intended to be covered. At first sight, a court making an order relating to a prisoner's sentence would want to take all the circumstances of the case into account, including the dangerousness of the offender. Given the purpose of an order under section 2(2), however, Parliament could be expected to have intended the court to disregard the matter of dangerousness; and that intention would be consistent with requiring the court specifically to take account of the factors listed in paragraphs (a) and (b). On the other hand, Parliament could hardly have intended the court to disregard mitigating factors such as the age of the offender, or contrition. Those factors could however only be taken into account, consistently with treating paragraphs (a) and (b) as exhaustive, by giving paragraph (a) a wide interpretation. That is indeed the approach adopted in subsequent cases such as Anderson v. H.M. Advocate, 1998 S.C.C.R. 196 and Nicol v. H.M. Advocate, 2000 S.C.C.R. 499.
58. Secondly, the court in Clark drew a distinction between the punishment of the offender and the protection of the public, again reflecting the purpose of an order under section 2(2). On the basis that the seriousness of the offence was germane to punishment rather than to the protection of the public, the court therefore inferred that the protection of the public was an irrelevant consideration in the fixing of the "relevant part".
59. Thirdly, the court explicitly had regard to the fact that the period specified under section 2(2) was a period which the appellant would require to serve in custody. By implication, the court was thus taking judicial notice of the fact that prisoners serving determinate sentences did not ordinarily serve in custody the period of imprisonment to which they had been sentenced. As explained below, that was something of which the court had not previously taken notice.
60. Section 2(2) was considered again, by a differently constituted court, in Robertson v. H.M. Advocate, 1997 S.C.C.R. 534. In that case a period of eight years had been specified by the sentencing judge. On appeal, it was argued that that period was the equivalent of at least a twelve year determinate sentence (allowing for early release), and that that would be excessive for the offence in question. In rejecting this submission, the court said (at page 541):

"In our view it is not appropriate to start converting the period which is recommended into some other possible sentence which may vary depending upon what Parliament decides to do from time to time in relation to matters of remission. When imposing sentence, it has been the practice of the court to impose the sentence which the court thinks is appropriate and not to take into account possibilities of remission, parole or anything of that nature. These are executive matters for the executives (sic) to decide and not for the court to decide. Accordingly, we consider that what we have to look at is the period of eight years and not some notional higher figure. Looked at on that basis, we are entirely satisfied that the nature of the present offence, involving, as it did, a possible danger to life, was one which required a substantial custodial sentence on any view and we cannot say that the period of eight years chosen by the sentencing judge was excessive."

61. It is apparent from the passage quoted that the court in Robertson regarded it as inappropriate for the court to fix the "relevant part" under section 2(2) on the basis of a comparison with the period which would be served by a prisoner serving a determinate sentence, under the early release provisions of section 1, by calculating a notional determinate sentence which would result in a period in detention equivalent to the period fixed under section 2(2). As the court pointed out, the result of the calculation would depend on the system of remission or parole currently applied to determinate sentence prisoners, and would therefore vary from time to time in response to decisions taken not by the court but by the legislature or the Executive. As the court in Robertson indicated, it is an axiomatic principle of sentencing that the court should decide the appropriate sentence in each case without reference to questions of remission or parole. In other words, the period of imprisonment which the court imposes as a sentence is the period which the court considers that it is appropriate for the prisoner to serve.
62. Section 2 was amended in 1997, partly in response to the judgment of the European Court of Human Rights in Hussain v. United Kingdom (1996) 22 EHRR 1, which had held that the principles set out in Thynne, Wilson and Gunnell applied also to persons sentenced to detention without limit of time for murders committed by them when they were under the age of 18. The amendment also reflected the insertion, by section 1 of the Crime and Punishment (Scotland) Act 1997, of a new section 205A into the Criminal Procedure (Scotland) Act 1995, providing for automatic sentences of life imprisonment on further conviction for certain offences (a provision which has not been brought into force). Section 16 of the 1997 Act accordingly substituted a new section 2(1) in the 1993 Act, the effect of which was to replace the term "discretionary life prisoner" with the new term "designated life prisoner". This term covered three categories of prisoner: first, those who had previously been described as discretionary life prisoners; secondly, those whose sentence was imposed under section 205A of the 1995 Act; and thirdly, those whose sentence was imposed in respect of a murder committed when the prisoner was under 18 years of age. Section 2(2) was also amended so as to refer to the "designated life prisoner" and the "designated part" (in place of the "discretionary life prisoner" and the "relevant part"), and so as to add an additional factor (c) which the court must take into account:

"(c) where appropriate, the matters mentioned in paragraphs (a) and (b) of

section 196(1) of the 1995 Act."

Section 196(1) of the 1995 Act provides:

"In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court may take into account -

(a) the stage in the proceedings for the offence at which the offender

indicated his intention to plead guilty; and

(b) the circumstances in which that indication was given."

This amendment to section 2(2) supports the view that the court can only take into account the matters mentioned in that subsection: if the list of relevant matters was not intended to be exhaustive, section 196(1) need not have been expressly added to the list, since it would apply in any event to an "order" made in relation to an offender, such as an order made under section 2(2).

63. Section 2(2) was next considered by the court in O'Neill v. H.M. Advocate, 1999 S.C.C.R. 300. As your Lordship in the chair has explained, the court in O'Neill laid down a method for calculating the period to be specified under section 2(2) as it then stood. According to that method, the sentencing court had to decide on the period of imprisonment which would have been appropriate purely for the purpose of punishment, if a determinate sentence had been imposed, and then specify a period of one half of that notional sentence. The court accepted that there might be exceptional circumstances in which the period might appropriately be up to two thirds of the notional sentence. This approach was arrived at with the purpose of achieving comparative justice between discretionary life prisoners and prisoners serving determinate sentences.
64. The decision in O'Neill might be questioned on the basis that, despite the absence from section 2(2) of any express requirement equivalent to that imposed by section 34(2)(b) of the 1991 Act, the court had found such a requirement to be implied. The fact that the court derived assistance from English authorities might also be questioned, on the same basis. I have however come to the conclusion that such criticisms would be misplaced.
65. The key to understanding section 2(2) (both as it stood at the time of O'Neill, and as it currently stands) is to be found in the fact that the court exercises its discretion to impose a life sentence, rather than a determinate sentence, because a life sentence is necessary for the protection of the public. It follows that, as far as the requirements of retribution and deterrence are concerned, the discretionary life prisoner is directly comparable to a determinate sentence prisoner. In principle, therefore, the sentence which would have been appropriate to satisfy the requirements of retribution and deterrence can be determined, in the case of a discretionary life prisoner, in the same way that it would be in the case of a determinate sentence prisoner. Section 2(2) does not however require the court to impose a sentence, but rather to decide the point at which the prisoner's case should be considered by the Parole Board. It would not therefore be appropriate to specify under section 2(2) a period which was equivalent to the whole of the notional sentence, for the reason which was identified in ex parte Handscomb and reiterated in O'Neill: if a determinate sentence had in fact been imposed, the prisoner would be eligible to be considered by the Parole Board for release on licence after serving a proportion of his sentence. The period specified under section 2(2) should therefore be the equivalent proportion of the notional sentence, so as to ensure that the period before the Parole Board first starts to consider the possibility of releasing the prisoner on licence is no longer than it would have been had considerations of public safety not dictated the need for an indeterminate rather than a determinate sentence. In view of the provisions of section 1, the appropriate proportion is generally one half (in the absence of some circumstance which justifies a higher proportion: a possibility which was acknowledged in O'Neill, and to which I shall return).
66. The choice of one half of the notional determinate sentence as the normal basis for the specified period thus follows from the nature of a discretionary life sentence and the purpose of section 2. It puts the offender, as regards the point in his sentence at which his case will be considered by the Parole Board, in the same position in relation to the punitive element of the life sentence as he would have been in if a determinate sentence had been imposed for punitive purposes. His case will be considered by the Parole Board at the same point as if he had received such a determinate sentence; thereafter, his continuing detention will depend primarily on dangerousness.
67. It may be argued that this approach only achieves comparative justice if the Parole Board applies the same criteria to discretionary life prisoners who have served half of their notional determinate sentence as to determinate sentence prisoners who have served half their sentence. In my opinion, however, the court is not required by section 2(2) to consider the manner in which the Parole Board deals with the cases coming before it. The aim of section 2(2) is simply to ensure that discretionary life prisoners are considered by the Parole Board at the same point as if a determinate sentence had been imposed. The court is not required under section 2(2) to pursue the issue of comparative justice beyond that point.
68. A more fundamental difficulty with the approach adopted in O'Neill might be thought to arise from the fact that the periods specified under section 2(2) will alter in response to alterations made by Parliament to the periods which have to be served by determinate sentence prisoners under section 1. As was pointed out in Robertson, the approach taken by Parliament or the Executive to early release can and does vary from time to time, in response to a variety of factors; but the court's view of what is an appropriate sentence to satisfy the requirements of retribution and deterrence does not vary in automatic response. On this basis, it might even be argued that for the court to follow the lead of other branches of government in fixing the period to be served by discretionary life prisoners for punitive purposes would undermine the rationale of section 2(2), insofar as that is to be found in article 5(4) of the European Convention on Human Rights: namely, that the length of punitive sentences should be determined by the courts.
69. The answer to this argument is that the specified period is not a punitive sentence, and is not the period which the court would consider an appropriate sentence to satisfy the requirements of retribution and deterrence. The specified period is arrived at in two stages. The first stage is for the court to decide on an appropriate sentence to satisfy the requirements of retribution and deterrence: that is in reality as well as in form a judicial function, which has to be carried out by an independent judiciary. The second stage is for the notional sentence to be discounted so as to bring the specified period into line with the period which would be served by a determinate sentence prisoner, prior to being considered by the Parole Board. That is done by applying a discount derived from section 1. Under section 2(2), that is a judicial function; but the court is not at that stage concerned with determining an appropriate punishment, but rather with equiparating the point at which the discretionary life prisoner's case will come before the Parole Board with that at which a determinate sentence prisoner's case would come before the Board.
70. Subsequent to the decision in O'Neill, section 2 of the 1993 Act was further amended by the Convention Rights (Compliance)(Scotland) Act 2001; and it is the provisions as so amended which now apply to Ansari's case, by virtue of the transitional provisions contained in the 2001 Act. The effect of the amendments was, in the first place, to further widen the ambit of section 2 by bringing within its scope any "life prisoner", defined by section 2(1) (as amended) as meaning:

"a person -

(a) sentenced to life imprisonment for an offence for which, subject to

paragraph (b) below, such a sentence is not the sentence fixed by law; or

(aa) sentenced to life imprisonment for murder or for any other offence for which that sentence is the sentence fixed by law;

(b) whose sentence was imposed under section 205A(2) of the 1995 Act

(imprisonment for life on further conviction for certain offences),

and in respect of whom the court which sentenced him for that offence made the order mentioned in subsection (2) below."

The amendment to section 2(1) therefore brings adult murderers within its scope, anticipating the judgment of the European Court of Human Rights in Stafford v. United Kingdom (2002) 35 EHRR 32.

71. Section 2(2), as amended, is in the following terms:

"(2) The order referred to in subsection (1) above is an order that subsections (4) and (6) below shall apply to the life prisoner as soon as he has served such part of his sentence ('the punishment part") as is specified in the order, being 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 the offence combined with other offences associated with it;

(aa) in the case of a life prisoner to whom paragraph (a) of subsection (1) above applies -

(i) the period of imprisonment, if any, which the court considers would have been appropriate for the offence had the court not sentenced the prisoner to imprisonment for life for it;

(ii) the part of that period of imprisonment which the court considers would satisfy the requirements of retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public); and

(iii) the proportion of the part mentioned in sub-paragraph (ii) above which a prisoner sentenced to it would or might serve before being released, whether conditionally or on licence, under section 1 of this Act;

(b) any previous convictions of the life prisoner; and

(c) where appropriate, the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act."

72. When section 2(2) in its present form is compared with the provision prior to its amendment by the 2001 Act, it is apparent that three significant amendments have been made. First, the specified period is now described as "the punishment part", rather than "the designated part". This reflects its purpose more clearly. Secondly, the word "appropriate" is now qualified by the words

"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)".

This makes it explicit that the specified period represents the punitive element of the life sentence and is not concerned with the issue of risk to the public. Thirdly, paragraph (aa) has been introduced. This, generally speaking, makes explicit what the court, in O'Neill, had held to be implicit in section 2(2) as it then stood.

73. In my opinion, therefore, the amended provisions preserve the effect of O'Neill. The approach adopted by the majority of your Lordships, on the other hand, proceeds on the basis that the new paragraph (aa) makes clear for the first time that, in the case of a discretionary life sentence, the assessment of a period that would satisfy the requirements of retribution and deterrence is exclusively a matter for the court (to the exclusion, that is to say, of any such assessment by the Parole Board). On that basis, your Lordships draw a distinction between the approach which the Parole Board may take to determinate sentence prisoners and the approach which it must take to discretionary life prisoners. In that regard, your Lordship in the chair has observed that the present legislation appears to assume that the protection of the public represents the sole criterion on which the Parole Board will make any recommendation on early release; whereas the Parole Board carries out its reviews in accordance with rules which permit it to take into account a wide variety of matters, including "the nature and circumstances of any offence of which that person has been convicted". Your Lordship states that while, in the case of a discretionary life prisoner, it is for the court to determine the period that would satisfy the requirements of retribution and deterrence, those other criteria may well remain relevant to the hypothetical determinate sentence with which a comparison has to be made. Following from that, on the basis that the gravity of the crime may be a factor in a decision by the Parole Board regarding the release of a prisoner who is serving a determinate sentence, the majority of your Lordships consider that it should also be a factor in a decision by the court as to the proportion that is appropriate under sub-paragraph (aa)(iii). The consequence of this interpretation of paragraph (aa) is a new approach to the making of orders under section 2(2) which departs significantly from the approach laid down in O'Neill.
74. Your Lordships appear to consider that the gravity of the offence may be relevant to the Parole Board's decision when dealing with a determinate sentence prisoner in a way in which it would not be relevant to its decision in respect of a discretionary life prisoner. In particular, the contrast drawn by your Lordships between the court's exclusive jurisdiction to determine the requirements of retribution and deterrence in the case of a discretionary life prisoner, and the Parole Board's entitlement to have regard to the nature of the offence in the case of a determinate sentence prisoner, appears to suggest that the Parole Board may have regard to the gravity of the offence in the latter situation (but not the former) in order to assess the requirements of retribution and deterrence. That suggestion also appears to be implicit in your Lordships' conclusion that, because the gravity of the offence may be a significant factor in the Parole Board's decision in respect of a determinate sentence prisoner, it should therefore also be a significant factor in the court's decision as to the proportion that is appropriate under sub-paragraph (aa) (iii): for the latter decision is concerned only with the requirements of retribution and deterrence.
75. I am, with respect, unable to agree with this reasoning. First, I note that the Parole Board (Scotland) Rules 2001, which came into force on the same date as the 2001 Act, apply equally to the cases of both discretionary life prisoners and determinate sentence prisoners. The Rules expressly permit the Parole Board to take into account, in dealing with any person, "the nature and circumstances of any offence of which that person has been convicted or found guilty by a court". The words "any offence" include the offence or offences for which the person's current sentence or sentences were imposed, together with any other offences of which he has been convicted; and the Rules provide (in rule 5 and the schedule) for information about such offences to be provided to the Parole Board. The fact that the Parole Board is entitled to take account of the nature of such offences does not however entail that its functions include retribution or deterrence: for the nature and circumstances of a person's offences, as well as the level of risk of re-offending, may plainly be important in deciding whether his confinement is necessary for the protection of the public. It may well be insufficient, for example, to know that the probability of re-offending has been assessed at a given level: the Parole Board may also need to consider the nature of the prisoner's previous offending in order to decide whether that level of risk is acceptable or not. Other matters, such as the circumstances of the offences, what the prisoner intends to do if he is released and the likelihood of his fulfilling those intentions, may also be relevant. In dealing with the case of a discretionary life prisoner, in particular, the Parole Board can take into account the nature and circumstances of his offences (and the other matters mentioned in the Rules) without trespassing on the court's function of determining the requirements of retribution and deterrence, since such matters may be material in considering whether it is necessary for the protection of the public that the prisoner should be confined, as required by section 2(5).
76. For these reasons, I do not draw any inference from the Rules that the Parole Board is generally entitled to have regard to the requirements of retribution and deterrence; nor, therefore, do I draw any inference from the amendments made to section 2(2) by the 2001 Act that the new paragraph (aa) prevents the Parole Board, when dealing with discretionary life prisoners, from having regard to requirements (namely, those of retribution and deterrence) which it may take into account when dealing with determinate sentence prisoners.
77. Secondly, I have explained above why I consider that the court should not, when taking decisions under section 2(2), consider the manner in which the Parole Board deals with the cases coming before it. Paragraph (aa) does not in my opinion affect that issue, or justify any departure from O'Neill. I do not interpret it as requiring the court to consider how the Parole Board would deal with a prisoner serving the notional determinate sentence, but simply as requiring the court to take account of the proportions specified in section 1.
78. Thirdly, other than in exceptional circumstances such as I discuss below, there does not appear to me to be any principled basis upon which the court can take the gravity of the offence into account when deciding upon the proportion of the notional determinate sentence under sub-paragraph (aa)(iii), when the court has already taken account of the gravity of the offence when arriving at that notional sentence under sub-paragraphs (aa)(i) and (ii). In deciding the period of imprisonment which would have been appropriate for the offence if a life sentence had not been imposed, under sub-paragraph (aa)(i), the court will give full weight to the gravity of the offence. In deciding the part of that sentence which would satisfy the requirements of retribution and deterrence, under sub-paragraph (aa)(ii), the court will reflect fully the gravity of the offence insofar as it affects those requirements. The gravity of the offence having been fully taken into account by the court in deciding on the notional sentence and the part of it which would satisfy the requirements of retribution and deterrence, the same factor cannot in my opinion be taken into account again by the court in deciding on an appropriate proportion.
79. Fourthly, if, contrary to my opinion, paragraph (aa) were considered to be ambiguous, then it would be legitimate to take into account, as an aid to its interpretation, the statement made by the Minister when introducing paragraph (aa) as an amendment during Stage 3 of the Bill (Scottish Parliament Official Report, 30 May 2001, cols. 1090-1091). That statement explains that paragraph (aa) was introduced for the avoidance of doubt, so as to maintain the existing position in respect of discretionary life prisoners as laid down in O'Neill.
80. In my opinion, therefore, the court should continue to determine the punishment period in two stages: first, it should decide what would be an appropriate determinate sentence to satisfy the requirements of retribution and deterrence, ignoring any period of confinement which might be necessary for the protection of the public; then, secondly, it should apply a discount to that notional sentence to reflect the proportion which a determinate sentence prisoner would have to serve before being considered by the Parole Board. In general, that period will be one half of the notional sentence; and, in accordance with the principle which I have explained, the court should therefore normally fix the punishment part at one half of the notional sentence.
81. Situations may however arise in which the general principle underlying section 2(2), and explained in O'Neill, may point towards a period which is longer than half of the notional sentence which would have been appropriate punishment for the offence in respect of which the life sentence was imposed. Indeed, it appears to me that there may be situations in which that principle may even point towards a period which is longer than two-thirds of that notional sentence. It is unnecessary in my opinion to decide in the present case whether the court can competently specify a period which is greater than the higher figure calculated under paragraph (aa)(iii), i.e. two thirds of the notional sentence which would have been appropriate punishment for the offence in respect of which the life sentence was imposed; and it is therefore unnecessary for me to express a concluded view. My provisional view, however, is that the court can competently do so. There is in any event no doubt that the court can competently specify a period between one half and two thirds of the notional sentence; and in my opinion it should do so in circumstances where the principle which I have explained justifies such a period. I mention some possible examples of such circumstances merely to demonstrate that the width of the discretion conferred by section 2(2) is not incompatible with the adoption of a principled and consistent approach.
82. A particular difficulty which I have in mind arises from a doubt as to whether the period specified under section 2(2) can be ordered to run consecutively to any other sentence. It has not been the practice of the court to order that a life sentence should be served consecutively to any determinate sentence; nor can a determinate sentence be made consecutive to a life sentence (McRae v. H.M. Advocate, 1987 S.C.C.R. 36; McPhee v. H.M. Advocate, 1990 S.C.C.R. 313). Where, therefore, an offender has been convicted of one offence in respect of which a life sentence is appropriate, and also of other offences, the practice of the court has been to admonish the offender in respect of the latter offences or to impose sentences which are concurrent with the life sentence. Section 2(2) was enacted in the context of that practice. The practice appears also to be reflected in paragraph (a), which directs the court to take into account, in deciding the length of the specified period, "the seriousness of ... the offence combined with other offences associated with it". It appears, therefore, that where the offender has committed more than one offence, the specified period should reflect the gravity of all those offences, and should satisfy the requirements of retribution and deterrence in respect of all those offences, rather than being concerned only with the offence in respect of which the life sentence has been imposed. I note that the Court of Appeal, in construing the corresponding English legislation, has expressed the opinion that the specified period cannot be ordered to run consecutively to another sentence (R. v. Sczerba (2002) 2 Cr. App. R. (S.) 85; see also R. v. Haywood (2000) 2 Cr. App. R. (S.) 418). For the reasons I have explained, it seems to me to be arguable that the Scottish legislation should be similarly construed.
83. If that is correct, however, then in order to place the prisoner in the same position, as regards the timing of the consideration of his case by the Parole Board, as if he had received a determinate sentence for punitive purposes, and thereby fulfil the intention of section 2(2), it will be necessary in certain situations to specify a period which exceeds half, or even two thirds, of the notional sentence envisaged under paragraph (aa). That is because paragraph (aa)(i) requires the court to take into account

"the period of imprisonment ... which the court considers would have been appropriate for the offence had the court not sentenced the prisoner to imprisonment for life for it".

The court is accordingly concerned under that provision with the notional sentence for "the offence" mentioned in section 2(1)(a), in other words the offence for which the court has sentenced the prisoner to imprisonment for life. Sub-paragraphs (ii) and (iii) are concerned with the same notional sentence. The general principle underlying section 2(2) and explained in O'Neill is however not necessarily restricted to a consideration of the period of imprisonment appropriate for that particular offence. It is possible to conceive of situations in which other matters would affect the point at which the prisoner would have been eligible to be considered by the Parole Board, if a determinate sentence had been imposed.

84. One such situation arises where the discretionary life prisoner has been convicted of other offences along with the offence in respect of which the life sentence has been imposed. The point can be illustrated by an example. An offender may have been convicted of culpable homicide and of being concerned in the supplying of controlled drugs. Having regard to his previous record of violent offending, the court may decide to impose a life sentence in respect of the conviction for culpable homicide. An appropriate determinate sentence on the charge of culpable homicide might have been 9 years. Half of that notional sentence would be 41/2 years; two thirds would be 6 years. If a determinate sentence or sentences had actually been imposed, however, then the appropriate sentence or sentences (taking account of both offences) might have totalled 14 years, with the result that the prisoner would not have been eligible for consideration by the Parole Board until he had served 7 years. In that situation, having regard to paragraph (a), it seems to me that the court would be entitled to specify a punishment part of 7 years, notwithstanding that it would be longer than either of the periods calculated under paragraph (aa). To do so would be consistent with the purpose of section 2(2), and indeed with the general approach adopted in O'Neill.
85. A similar situation arises where an offence meriting a discretionary sentence of life imprisonment is committed by an offender who is serving a previous sentence or who has been released on licence from such a sentence which has not expired. In that situation, if a determinate sentence had been imposed, it might have been made consecutive to the sentence currently being served, or (in the event that the prisoner had been released on licence) to an order under section 16 of the 1993 Act. The principle underlying section 2(2) requires the court, in that situation, to specify a period which will result in the prisoner's case being considered by the Parole Board at the same point as if such a determinate sentence had been imposed. Paragraph (b) requires any previous conviction to be taken into account; but the unexpired sentence cannot be incorporated into the calculations required by paragraph (aa). The point can be illustrated by the facts of R. v. Haywood. Two days after being sentenced to 8 years imprisonment, the prisoner committed a serious assault upon a prison officer. A life sentence was imposed. The appropriate determinate sentence for the assault would have been 7 years; but a specified period of 31/2 years, based on a notional 7 year sentence, would have added virtually nothing to the sentence which the prisoner was already serving. A period of 7 years was therefore specified so as, in effect, to make the minimum period to be served for the assault run consecutively to the previous sentence. As I have explained, the purpose of section 2(2) is that the prisoner's case should be considered by the Parole Board at the same point as if a life sentence had not been necessary: on the facts of Haywood, as if a sentence of 7 years imprisonment had been imposed, consecutive to the 8 year sentence already being served. In such a situation, to specify a period calculated as half, or even two thirds, of the notional sentence appropriate to the offence attracting the life sentence would not satisfy the requirements of retribution and deterrence, since it would not involve any punishment of the offender at all, and it would therefore not be in accordance with section 2(2).
86. Situations of the kind which I have discussed in the two preceding paragraphs may justify a departure from the general approach of specifying the lower figure brought out by paragraph (aa), but those departures are justified by the general principle that the punishment period should be equivalent to the period which would have been served for punitive purposes, prior to consideration by the Parole Board, if a determinate sentence had been imposed, and therefore promote the public policy underlying section 2(2).
87. Applying these principles to the present case, I do not take issue with your Lordships' view that an appropriate determinate sentence, ignoring any period of confinement necessary for the protection of the public, would have been 13 years. On that basis, the appropriate punishment period is in my opinion 61/2 years. In my respectful opinion, there is no legitimate basis for increasing that period on the ground that the gravity of the offence calls for a longer period: the court has already taken full account of the gravity of the offence in deciding that a determinate sentence of 13 years would satisfy the requirements of retribution and deterrence. The result of your Lordships' decision is to require Ansari to serve, for punitive purposes, before his case can be considered by the Parole Board, a period which is significantly longer than he would have required to serve before coming before the Parole Board if he had in fact received a determinate sentence for purely punitive purposes. I regret that I am unable to agree with that result.

 

Ansari v. Her Majesty's Advocate [2003] ScotHC 17 (2 May 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Marnoch Lord Reed Lord McCluskey	Appeal No. C94/02 OPINION OF LORD McCLUSKEY in REFERRAL BY THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION of the case of YUSUF ANSARI (formerly known as GEORGE ARCHIBALD CLARK) _______

 

Appellant: Shead, Barr; Bennett and Robertson

Respondent: Turnbull QC, AD; Crown Agent

2 May 2003

88. As your Lordship in the Chair has explained, the effect of present legislation is to compromise a principle that previously lay at the heart of the treatment of persons convicted of crimes and as a consequence sentenced to custody. It was always the duty of the judge who imposed a custodial sentence to determine what the sentence should be, in the light of all the circumstances of the case and of the practice of the court. He had then to pronounce that sentence regardless of what the executive might subsequently choose to do, in the exercise of statutory or prerogative powers, to reduce the period actually served. After sentence had been pronounced, the executive, exercising whatever powers it then had, might choose to free the prisoner, whether unconditionally or on licence. That process might involve a body such as the Parole Board for Scotland. The executive might base its early release decisions on grounds that would have little or no relationship to any matters relevant to any decision the sentencing judge had to make. Thus the executive might have regard to matters such as the overcrowding of the prisons, or changes in government penal policy or compassionate or health considerations or decisions of the European Court of Human Rights: such matters, of course, could well arise in a context about which the judge at the time of sentencing could know nothing. So the two functions, that of fixing the term of imprisonment and that of releasing the convict before the expiry of that term, were distinct; and each function fell to be exercised in its own time and context. Section 2, however, as now worded, imposes upon the court the duty of "taking into account" the possible exercise by the executive at some future date of statutory early release powers. The court must perform that duty without regard to the possibility that such powers might be amended at some future time when the prisoner is still in custody serving his sentence of imprisonment. Indeed, by way of example of such an amendment, the early release provisions enacted in the 1993 Act were prospectively repealed by the Crime and Punishment (Scotland) Act 1997, Part III, enacted less than four years after the 1993 Act was passed, and were replaced by more severe provisions, and complicated transitional provisions; then, within months, the incoming government decided not to bring the newly enacted provisions into force. The court, however, must also perform its duty under section 2 without any possible knowledge of any other circumstances that it might be appropriate for the executive to take into account when considering early release.
89. Unfortunately, the frequently amended section that has created the present unsatisfactory situation is now complicated and delphic. The result has been to create a division of judicial opinion in relation to the meaning and application of section 2(2), sub-paragraph (aa)(iii). I do not read that provision as in any way preventing the court from fixing the proportion by reference to the earliest possible release date that the prisoner could be given. The use of the words "the proportion of the part mentioned in sub-paragraph (ii) above which a prisoner sentenced to it would or might serve before being released, whether conditionally or on licence, under section 1 of this Act" appears to me, in context, to require the court to take into account that a comparable long-term prisoner might serve only one-half of the sentence imposed. The words "would or" appear to me to relate to the exercise of making some comparison with a short-term prisoner. Thus I read the current provisions as simply permitting the court, though not requiring it, to fix "the punishment part" at one-half of the retribution and deterrence element of the sentence. That is the proportion that a prisoner would expect to serve before release (if he was a short-term prisoner) or before being entitled to have his case considered by the Parole Board (if he was a long-term prisoner).
90. The sentencing judge is not compelled to apply any particular fraction when deciding upon the length of the punishment part. So the section does not compel the sentencing judge to specify a punishment part within the range of one-half to two-thirds of the period of imprisonment referred to in section 2(2)(aa)(i). All that the section enjoins the sentencing judge to do in this regard is to take into account the early release provisions, as they stand at the time of passing sentence. If the legislative intention had been that the period selected by the sentencing judge (as appropriate to satisfy the retribution and deterrence requirements ) had to be cut down by some specific fraction, and that that should be done by the judge at the time of sentencing, then it would have been very easy to say so in unambiguous terms. That has not been done.
91. What would have been easier still, if the legislature had intended that the punishment period chosen by the sentencing judge should be reduced in a manner exactly similar to that applicable to determinate sentences, would have been to enact (1) that the sentencing judge should simply specify the punishment period - on a comparative basis - without any regard to the possibility of early release procedures or possibilities and (2) that the executive should then have a separate and distinct power to invoke the usual, or similar, early release procedures after the expiry of a specified part of that punishment period. There would have been no difficulty in the way of enacting such a provision; and it would have achieved the objective of comparative justice, equating the discretionary life prisoner to the prisoner who has received a determinate sentence. It would have had the further advantage that it would be clear to the public at large that any decision to reduce the time actually to be served before parole could be applied for was being made not by the sentencing judge but by the executive. It would have had the further advantage that, at the time when the actual decision to reduce the period of incarceration was made, it would be made by an executive that could take account of the relevant facts and circumstances prevailing at that time: one of the unfortunate features of the system created by the section as now framed is that the sentencing judge is obliged to appear to trim his sentence on the basis of unassisted speculation about matters pertaining to possible early release, which are obviously matters that lie in the future, and of which he cannot have any knowledge when he selects the punishment part .
92. In this unsatisfactory state of affairs, while it may be that the legislature intended that the punishment part should, in a case without special features, be set at one-half of the period that the judge actually determines would be appropriate for punitive purposes, it did not compel that result. In any event, the present case is almost as bad a case as could be imagined.
93. In the light of these considerations, and all the matters discussed in the opinions of your Lordships, I have come to be of the opinion that the appeal should be disposed of as proposed by your Lordship in the chair.