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Cite as: [2003] ScotHC 33
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Flynn & Ors v. Her Majesty's Advocate [2003] ScotHC 33 (04 June 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Osborne Lord Hamilton
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Appeal Nos: XC398/02 XC170/03 XC85/02 XC169/03 OPINION OF THE LORD JUSTICE GENERAL in APPEALS AGAINST SENTENCE by PATRICK FLYNN, PETER MITCHELL MEEK, JOHN GARY NICOL and PETER McMURRAY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: M. Bovey, Q.C., Blair; Bennett & Robertson: M. Bovey, Q.C., Blair; Bennett & Robertson: . Bovey, Q.C., Barr; Bennett & Robertson:
C. Shead, Edwards; McCusker McElroy
Respondent: J. Peoples, Q.C., A.D.; Crown Agent
4 June 2003
Introduction
[1] The appellants, who are prisoners serving mandatory life sentences for the crime of murder, have appealed against the orders by which the punishment part of their sentences have been specified retrospectively under the Convention Rights (Compliance)(Scotland) 2001 (the 2001 Act). [2] The appellant Flynn was sentenced on 11 January 1989 to detention for life in a young offenders institution, later backdated to 5 September 1988, in respect of a murder that had been committed by him on 2 September 1988. Following a decision by the Secretary of State for Scotland his case was reviewed by the Parole Board for Scotland in April 1997, February 1999 and January 2001. After the last of these reviews he was informed that the Parole Board would review his case again in February 2003. However, following the coming into operation of the relevant provisions of the 2001 Act on 8 October 2001, his case was referred by the Scottish Ministers to the High Court in accordance with paragraph 3 of the Schedule to the 2001 Act. On 5 August 2002 the punishment part of his life sentence was specified as 15 years. [3] The appellant Meek was sentenced on 2 June 1995 to life imprisonment, later backdated to 9 February 1995, for a murder committed on 7 February 1995. By letter dated 16 September 1999 he was informed by the Scottish Executive Justice Department that the Scottish Ministers had decided that the first review of his case by the Parole Board would take place after he had served 8 years of his sentence. On 17 September 2002 the punishment part of his sentence was specified as 14 years (backdated per incuriam to 2 June 1995). [4] The appellant Nicol was sentenced on 6 December 1995 to life imprisonment for a murder committed by him on 6 August 1995, the sentence to run from the latter date. By letter dated 27 April 2000 he was informed by the Scottish Executive Justice Department that the Scottish Ministers had decided that the first review of his case by the Parole Board would take place after he had served 10 years of his sentence. On 23 September 2002 the punishment part of his sentence was specified as 14 years. [5] The appellant McMurray was sentenced on 14 November 1985 to life imprisonment, with effect from that date, for three murders committed by him on 24 July 1985. The trial judge recommended, in accordance with section 205A of the Criminal Procedure (Scotland) Act 1975, that the minimum period which should elapse before he was released on licence should be 20 years. On 1 July 2002 the punishment part of his sentence was specified as 30 years. [6] In each of these cases, the punishment part was specified by a judge other than the judge who had presided at the trial and had imposed the life sentence at its conclusion. [7] In these appeals it is maintained by each of the appellants that the punishment part which was specified in his case was not merely excessive but was unlawful or proceeded on a misinterpretation of the law. The first stage of the hearing of their appeals has been concerned with the latter complaints, as is this Opinion. [8] Mr. Bovey, on behalf of the appellants Flynn, Meek and Nicol, presented a number of contentions relating to all of the appellants, which were adopted by Mr. Shead on behalf of the appellant McMurray. For the assistance of the court the Advocate depute responded to these submissions. I will set out Mr. Bovey's contentions in some detail later in this Opinion. For the moment it is sufficient to say, by way of introduction, that in the case of each of the appellants he submitted the following:A. The punishment part conflicted with the pre-existing human rights of the
appellant under the domestic law, despite the terms of Article 53 of the European Convention on Human Rights (the Convention);
B The punishment part was incompatible with the right of the appellant under
Article 7 in respect that it imposed a heavier penalty than the penalty applicable at the time of the commission of the crime. If the 2001 Act could not be interpreted so as to comply with this right, it was in violation of Article 7 in so far as it permitted the imposition of a tariff period or imprisonment longer than the appellant would otherwise have served;
C The punishment part was incompatible with the right of the appellant under
Article 5(1), as read with Article 17, in respect that it imposed a longer period of imprisonment than the appellant would otherwise have served. If the 2001 Act could not be interpreted so as to comply with this right, it was in violation of these Articles in so far as it permitted the imposition of a period of imprisonment longer than that which the appellant would otherwise have served;
D The 2001 Act was in violation of the right of the appellant under Article 14,
taken together with Article 5 et separatim Article 6, in respect that it failed to permit the appellant to waive his right to a punishment part hearing; and
E The 2001 Act was in violation of the right of the appellant under Article 6(1)
in respect that it compulsorily extended the length of the appellant's trial beyond a reasonable time.
From the above it can be seen that heads D and E, and, subject to the interpretation of the 2001 Act, heads B and C, sought to raise a question as to the legislative competence of the Scottish Parliament under section 29 of the Scotland Act 1998, and hence a devolution issue within paragraph 1(a) of Schedule 6 to that Act.
[9] In view of the doubt expressed by the court in Arthur v. H.M. Advocate 2002 S.C.C.R. 796 as to the competence of using a statutory appeal against sentence as a means of challenging the lawfulness of a sentence, Mr. Bovey invited the court to grant petitions to the nobile officium of the court on behalf of the appellants Meek and Nicol. The prayer in these petitioners sought, by reference to the arguments under heads D and E, the restriction by the court of the punishment part in the case of these appellants to 8 and 10 years respectively. No petition was presented on behalf of the appellant Flynn. For the appellant McMurray, Mr Shead presented a similar petition, but in his case the court was invited, with regard to heads D and E, to quash the order for the punishment part simpliciter. [10] The questions raised by the contentions which I have outlined above plainly are of general importance in regard to orders for the retrospective specification of punishment parts under the 2001 Act. Since the 2001 Act came into force many such orders have been made, and this court has dealt with a number of appeals relating to the length of the punishment part. This is, however, the first occasion in which the court has been asked to address questions relating to the lawfulness of such orders.Previous law and practice
[11] Before coming to the arguments in more detail, it is necessary, in my view, to set out the system which preceded the 2001 Act, and the developments in the law which led up to the passing of that Act. [12] The original provision for the release on licence of persons serving a term of imprisonment for life was made by section 57 of the Criminal Justice (Scotland) Act 1949, which provided that the Secretary of State might"at any time if he thinks fit release on licence a person serving a term of imprisonment for life subject to compliance with such conditions, if any, as the Secretary of State may from time to time determine".
Similar provision was made by section 21 of the Prisons (Scotland) Act 1952. Section 2 of the Murder (Abolition of the Death Penalty) Act 1965 (the 1965 Act) introduced a requirement for the Secretary of State to have previously consulted the Lord Justice General together with the trial judge, if available. Section 61 of the Criminal Justice Act 1967 (later replaced by section 26(1) of the Prisons (Scotland) Act 1989) further qualified the power of the Secretary of State to release prisoners on licence by requiring that this should be on the recommendation of the Parole Board.
[13] Section 1(2) of the 1965 Act enabled the judge who passed a life sentence to make a recommendation as to the minimum period which should elapse before the prisoner was released on licence. Similar provision was made by a series of later enactments, including section 205A of the Criminal Procedure (Scotland) Act 1975. Prior to the enactment of the 2001 Act the last provision to this effect was section 205(4) of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act). Under these successive provisions it was open to the sentencing judge to take into account matters relating to both punishment and risk, according to the circumstances of the case. Section 43 of the Criminal Justice (Scotland) Act 1980 introduced a procedure for appeal against such a recommendation. [14] Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act), which applied to persons sentenced on or after 1 October 1993, introduced special provisions in regard to discretionary life sentences. A prisoner who received such a sentence was given a qualified right to require the Secretary of State to refer his case to the Parole Board as soon as he had served "the relevant part" of his sentence, which was to be specified at the time when his life sentence was imposed, being in terms of subsection (2):"such part as the court considers appropriate taking into account -
(a) the seriousness of the offence, or the offence combined with other
offences associated with it; and
(b) any previous conviction of the life prisoner".
"If recommended to do so by the Parole Board under this section, the Secretary of State may, after consultation with -
(a) the Lord Justice General, whom failing the Lord Justice Clerk; and
(b) if available, the trial judge,
release on licence a life prisoner who is not a discretionary life prisoner".
Decisions of the European Court of Human Rights
[25] The development of the statutory provisions in regard to the release of life prisoners was strongly influenced by a number of decisions of the European Court of Human Rights. There was a growing recognition of the need for a judicial determination of the part of the life sentence which was required for the punishment of the prisoner, after serving which he would have the right to have his case for release adjudicated upon by the parole authority. While these decisions related to the English system, they had obvious implications for the system in Scotland. [26] In Thynne, Wilson and Gunnell v. United Kingdom (1990) 13 E.H.R.R. 666 it was held that a discretionary life sentence contained both a punitive element and a protective element, the former consisting of the period of detention considered necessary to meet the requirements of retribution and deterrence. As regards the latter there was a violation of Article 5(4) in respect that there was a lack of judicial control. This decision followed the earlier case of Weeks v. United Kingdom (1987) 10 E.H.R.R. 293 in which it was held that the Parole Board lacked the power of decision-making required under Article 5(4). These decisions formed the background to the enactment of section 2(2) of the 1993 Act, as well as the corresponding provisions in England. [27] In Hussain v. United Kingdom (1996) 22 EHRR 1, it was recognised that a mandatory sentence of a young person to detention during Her Majesty's pleasure clearly included a punitive purpose. After the expiration of the tariff, the continued detention of the prisoner could only be justified by considerations relating to need to protect the public. It was held that there had been a violation of Article 5(4) in respect that the prisoner had been unable, after the expiry of the punitive period, to bring the case of his continued detention before a judicial body. This decision was followed by the enactment of section 16 of the 1997 Act. [28] However, as regards an adult mandatory life sentence, it was observed in Thynne, Wilson and Gunnell that its objectives differed from those of a discretionary life sentence. In Wynne v. United Kingdom (1994) 19 E.H.R.R. 333, the mandatory life sentence was viewed as "essentially punitive in nature" (paragraph 33). The court at paragraph 23 noted the remarks of Lord Mustill in R. v. Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 at page 559 that the theory and practice of the adult mandatory life sentence were out of tune and that, for the purposes of procedures designed to consider the release of the mandatory life prisoner as well as the standards of fairness applicable to such procedures, the mandatory sentence should also be seen as containing both a punitive and a preventive element. The court continued:"However, the fact remains that the mandatory sentence belongs to a different category from the discretionary sentence in the sense that it is imposed automatically as the punishment for the offence of murder irrespective of considerations pertaining to the dangerousness of the offender. That mandatory life prisoners do not actually spend the rest of their lives in prison and that a notional tariff period is also established in such cases - facts of which the court was fully aware in Thynne, Wilson and Gunnell - does not alter this essential distinction between the two types of life sentence". (Paragraph 35).
The 2001 Act
[29] Under the 2001 Act section 1(4) of the 1993 Act was repealed. Section 2(2) of the 1993 Act was amended, so that the court which imposed mandatory life imprisonment was obliged to make an order specifying the "punishment part" of the life sentence, 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;
...
(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".
Modified provisions were made in the case of discretionary life sentences. Under section 2(5) the Parole Board was not to direct the Scottish Ministers to release a life prisoner on licence unless, inter alia, it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined.
[30] The Schedule to the 2001 Act contained provisions in regard to existing life prisoners, namely those who had received a life sentence before 8 October 2001. Part 1 of the Schedule applied to inter alia, a life prisoner who had been sentenced for murder committed by him when he was aged 18 or over. His case was to be referred to the High Court of Justiciary for hearing under paragraph 12, at which the court was obliged to make an order under paragraph 13, which stated:"That order is an order specifying a part of the sentence which the court considers would have been specified as the punishment part under subsection (2) of section 2 of the 1993 Act had that section, as amended by this Act, applied to that prisoner at the time he or she was sentenced."
Section 2 of the 1993 Act, as amended by the 2001 Act, was, in terms of paragraph 20, to apply to the existing life prisoner as if the order under paragraph 12 were an order such as was mentioned in subsection (2) of that section and had been made at the time when the existing life prisoner had been sentenced. An order under paragraph 12 would therefore determine the earliest date as at which the life prisoner could have his release on licence considered by the Parole Board acting as a tribunal. Such an order, like an order under section 2(2) as amended, was to constitute part of a person's sentence within the meaning of the 1995 Act for the purposes of any appeal or review (section 2(3)).
[31] Under paragraph 5 of the Schedule the Scottish Ministers were not to refer the case of a life prisoner who had been released on licence unless he had been recalled to prison and the Parole Board had not directed his immediate release on licence. Special provision was also made in regard to existing life prisoners to whom Part 3 of the Schedule applied, namely prisoners in respect of whom the Parole Board had recommended a PRD; whose case had not been subject to a hearing under paragraph 12; and to whose release neither the Lord Justice General, whom failing the Lord Justice Clerk, nor, if available, the trial judge, objected. Under paragraph 7 such a life prisoner might, subject to certain provisos, waive his entitlement to a hearing under paragraph 12. With the qualifications contained in paragraphs 34-40, if the Scottish Ministers had fixed a PRD, the prisoner was to be released then as if he had been a life prisoner to whom section 2(4) of the 1993 Act applied and had served the punishment part of his sentence. If the Scottish Ministers had not fixed a PRD, subject again to paragraphs 34-40, the prisoner was to be released on the PRD recommended by the Parole Board as if released on licence under section 2(4) as a life prisoner to whom that section applied and who had served the punishment part of his or her sentence (paragraph 41). [32] The Schedule also applied to a life prisoner in respect of whom the Lord Justice General or the Lord Justice Clerk had issued a certificate under paragraph 6(1) of Schedule 6 to the 1993 Act or section 16(2) of the 1997 Act. Under paragraph 6 of the Schedule to the 2001 Act the Scottish Ministers were not to refer the case of such a prisoner if, subject to certain provisions, he had waived his entitlement to a hearing under paragraph 12 or had served the part of the sentence specified in the certificate. [33] The coming into force of the 2001 Act was followed by the decision of the European Court of Human Rights in Stafford v. United Kingdom (2002) 35 E.H.R.R. 1121, which was decided on 25 May 2002 and related to an adult mandatory life prisoner in England. In that decision the court reviewed the development in the analysis of different types of life sentence with particular regard to the need for a judicial determination of the requirements for punishment, on the one hand, and the assessment of risk to the public, on the other, before and after the coming into force on 2 October 2000 of the Human Rights Act 1998. In the light of that review the court stated at paragraph 79:"The Court considers that it may now be regarded as established in domestic law [of England and Wales] that there is no distinction between mandatory life prisoners, discretionary life prisoners and juvenile murderers as regards the nature of tariff-fixing. It is a sentencing exercise. The mandatory life sentence does not impose imprisonment for life as a punishment. The tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. The court concludes that the finding in Wynne that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the domestic criminal justice system of the mandatory life prisoner. This conclusion is reinforced by the fact that a whole life tariff may, in exceptional cases, be imposed where justified by the gravity of the particular offence".
The court went on to note in paragraph 80 that recent reforms in Scotland and Northern Ireland had equated the position of mandatory life prisoners in those jurisdictions to that of discretionary life prisoners in England and Wales in respect of whom continued detention after the expiry of the tariff was based solely on assessment of the risk of harm to the public from future violent or sexual offending. The court went on to observe (at paragraph 87):
"It can no longer be maintained that the original trial and appeal proceedings satisfied, once and for all, issues of compatibility of subsequent detention of mandatory life prisoners with the provision of Article 5(1) of the Convention."
It held that the prisoner's continued detention was not reviewed by a body with a power to release or with a procedure containing the necessary judicial safeguards, including, for example, the possibility of oral hearing (paragraph 89), and accordingly that there had been a violation of Article 5(4) of the Convention.
[34] To bring matters up to date, I refer finally to R. (Anderson) v. Secretary of State for the Home Department [2002] 3 WLR 1800, which was decided on 25 November 2002, in which it was held that a declaration of incompatibility under section 4 of the Human Rights Act 1998 should be made in regard to section 29 of the Crime (Sentences) Act 1997, by which the Home Secretary had been given the power to take the decisions in relation to the length of imprisonment and the release of prisoners serving mandatory life sentences. At paragraph 17 Lord Bingham of Cornhill drew attention to judgments which had shown a growing recognition that the tariff-fixing exercise involved the imposition of a sentence. He referred to the reconsideration by the European Court of its own case law on mandatory life sentences which it had undertaken in Stafford. At paragraph 40 Lord Steyn pointed out that Article 6"requires effective separation between the courts and the executive, and further requires that what can in shorthand be called judicial functions may only be discharged by the courts",
In paragraph 42 he pointed out that the reason for the 2001 Act was the apprehension that the executive's role would be in conflict with Article 6(1). At paragraph 44 he observed, under reference to the decision of the European Court in Benjamin and Wilson v. United Kingdom, The Times, 9 October 2002, that it had been held that the fact that the Secretary of State adopted a practice of following the recommendation of a mental health review tribunal did not alter the fact that the decision to release would be taken by a member of the executive. At paragraph 52 he stated that under the existing practice the advice of the trial judge and the Lord Chief Justice on tariff had no effect on the term which had to be served. On the other hand, the tariff fixed by the Home Secretary had, subject to Article 6(1), definitive legal consequences.
Submissions on behalf of all the appellants
A. Article 53 of the Convention and human rights under the domestic law
[35] Mr. Bovey's submissions can conveniently be summarised as follows: [36] (i) The "tariffs", et separatim the periods of imprisonment, to be served by the appellants were longer than they would have been but for the operation of the 2001 Act. Prior to the 2001 Act the appellants had had a legitimate expectation that the case for their release would be reviewed by the Parole Board at the stages to which I have referred earlier. He contrasted this with the later dates on which the punishment parts would expire. He argued that the setting of a first date for review by the Parole Board was, in effect, the setting of a "tariff" for what he called "the retributive period". He compared this with the tariff in England, which had evolved as a matter of policy adopted by successive Home Secretaries (see R. v. Secretary of State for the Home Department, ex parte Pierson, Lord Goff of Chieveley at pages 570-571). The only mechanism by which the appellants could secure their liberty was following a favourable decision by the Parole Board. [37] Mr. Bovey went on to submit that, even if the setting of the first date for review was not a tariff, the fact that the punishment part was longer would or might extend the period during which the appellants were in custody. In support of this submission Mr. Bovey had recourse to general statistics. When considering the Bill which led to the 2001 Act, the Justice 1 Committee were informed that the average period served by life prisoners had been about 13 years, whereas the average punishment part which had been ordered since the coming into operation of the 2001 Act was between 13 and 131/2 years. To the latter would require to be added the time which would elapse before the prisoner's case was reviewed by the Parole Board. This was, he understood, about 19 weeks. Thereafter there would be a lapse of time before the release of the prisoner. Under the previous system it was on average 21/2 years, and during the last four years there had been a 71% failure rate. Although it might be assumed that the time which would elapse under the new system would be shorter, the Parole Board's approach to its task was essentially the same as before. It also had to be borne in mind that under the previous system very few recommendations of the Parole Board for release were rejected by the Ministers. In any event such rejection now fell to be disregarded. Further, the senior judiciary had rarely taken the view that the prisoner whose release was recommended should be required to serve more time. [38] (ii) The "tariffs", et separatim the periods of imprisonment, to be served by the appellants represented limitations of their human rights under the domestic law. Mr. Bovey submitted that in specifying the punishment parts in the appellants' cases in the terms in which they had the sentencing judges had limited or derogated from their human rights to liberty. He defined these rights as including the right to release on licence, to which the review of their cases for release was clearly linked. The judges had interpreted and applied legislation intended to secure compliance with human rights in a way which had the effect of derogating from rights already ensured to them under Scots law. As a matter of common law, independent of incorporated Convention rights, that was illegitimate. [39] (iii) Article 53 of the Convention prohibited an interpretation of Convention rights which limited the human rights of a citizen under the domestic law. That Article is in the following terms:"Nothing in this Convention shall be construed as limiting or derogating from any of the human rights and fundamental freedoms which may be ensured under the laws of any High Contracting Party or under any other agreement to which it is a Party".
Although the Article was not incorporated by section 1 of the Human Rights Act 1998, he relied on the well-recognised presumption in favour of the interpretation of the domestic law in such a way as not to place the United Kingdom in breach of any international obligation (R. v. Lyons [2002] 3 WLR 1562, Lord Hoffman at paragraph 27, Lord Millett at paragraph 109). Unlike section 11 of the Human Rights Act 1998, Article 53 was not restricted to a situation where a Convention right was relied on. It reinforced the protection afforded at national level but never limited it. It applied to every kind of rule by which a State exercised its jurisdiction.
[40] (iv) It was not a necessary interpretation of the 2001 Act - which proceeded from the legislator's interpretation of the Convention - that longer sentences could be imposed. Mr. Bovey emphasised that the legislature had not intended that the time spent in prison by prisoners such as the appellants should be increased. The Convention could not lawfully be used so as to make their position worse than it would otherwise have been. The recommendation by the PRC and its acceptance by the Ministers, on the one hand, and, on the other hand, the recommendation of the Parole Board and its acceptance by the Ministers, corresponded to the provisions made by the 2001 Act. The courts had an obligation to act compatibly with the Convention. Section 2(2) of the 1993 Act, as amended by the 2001 Act, set out the approach which the court should adopt in arriving at a punishment part for "retribution and deterrence". If the appellants had evaded detection until 2003, it could have been taken into account that in the interim they had been law-abiding citizens. Likewise in order to achieve compliance with the Convention the sentencing judge in determining the punishment part should have taken account of the date for first review by the Parole Board . [41] (v) Accordingly, the appeals should be allowed to the extent of limiting the expiry of the punishment part to the dates set by the Ministers on the recommendation of the PRC for the first review by the Parole Board. In the case of the appellant Flynn, Mr. Bovey limited his submission to the date of the next review which had been expected prior to the coming into force of the 2001 Act. [42] It is important, in my view, to bear in mind that, under the previous system which existed at the time when the 2001 Act came into force, an adult mandatory life prisoner had no right to be released or to be considered for release at a particular date or stage in the sentence. These were matters for decision by the Ministers in the exercise of their discretion. As the Advocate depute submitted, the detention of such a life prisoner, however long it continued, was lawful under the domestic law and, as matters then stood, under the Convention as interpreted by the European Court of Human Rights. It was lawful by virtue of the determination of guilt and the imposition of the mandatory life sentence. [43] Further, in my view, the comparison between the determination of a punishment part under the 2001 Act, and the decision of the Ministers as to when the first review of a prisoner's case should be undertaken by the Parole Board is unsound. Quite apart from the fact that determination of a punishment part involves a judicial decision and gives rise to a right to have the case referred to the Parole Board for their adjudication, whereas the latter did not, the considerations taken into account do not correspond. Whereas a punishment part is to satisfy the requirements of retribution and deterrence, the considerations taken into account by the PRC in reaching its advice, and presumably also by the Ministers in reaching their decision, were wider. The latter exercise appears to have had something in common with the original practice in England before the Home Secretary adopted the policy of arriving at a tariff which was intended to represent the requirements for retribution and deterrence. Referring to the change of policy adopted by the Home Secretary in 1993 Lord Hope of Craighead observed in R. v. Secretary of State for the Home Department, ex parte Pierson at page 600:"Further, unlike Mr. Brittan, Mr. Howard directed his statement not to the penal element as one among other factors relevant to the timing of the first review date, but to the fixing of the penal element itself according to the Home Secretary's own view of the requirements of retribution and deterrence for the offence. The exercise had thus become one which was directed specifically to the fixing by the Home Secretary of the penal element to satisfy the requirements of retribution and deterrence. It was directly concerned with the question of punishment, not with the choice of the review date taking all the circumstances into account".
It is also to be noted that in Scotland the Ministers did not obtain the advice of the senior judiciary and the trial judge as to the "criminal justice requirements" until the PRD had been recommended by the Parole Board.
[44] During the course of the discussion the attention of the court was drawn to the policy memorandum relating to the Bill which led to the 2001 Act. At paragraph 29 it was stated that the existing arrangements for determining the release of adult mandatory life prisoners"could be said to be effectively split into a punishment period and a risk period. The Scottish Ministers therefore consider that there is a risk of a domestic court taking the view that, in practice, the arrangements for the release of [adult mandatory life prisoners] are no different from those applying to other prisoners sentenced to indeterminate terms of imprisonment. In those circumstances, a domestic court would find a breach of Article 5(4) (since after the expiry of the punishment period the question of risk must be considered by a court-like body) and a breach of Article 6 (since the punishment part would require to be set by the court)".
If a life sentence is to be considered as being in part punitive and in part preventative, a number of consequences follow. Apart from those rare cases in which the need for punishment mean that the prisoner will actually be imprisoned for life, it is necessary to determine when the prisoner will have reached the stage of his sentence at which the justification for his continuing imprisonment would depend solely on the need to protect the public. For this purpose it is necessary to determine the length of the punitive part of the sentence. The prisoner would have a right to a judicial determination of the punitive part of the sentence and, having served it, to an adjudication by the Parole Board independently of the executive, as to whether he should or should not continue to be imprisoned. While it is clear that the policy memorandum, and hence the 2001 Act, anticipated the decision in Stafford v. The United Kingdom in regard to what was required in order to satisfy Article 5(4) and Article 6 of the Convention, I do not agree with the view which was expressed in the policy memorandum that under the previous system the period which led up to the Ministers deciding upon the point of time at which a prisoner's suitability for release should first be reviewed by the Parole Board should be considered as having been "a punishment period". In my opinion, for the reasons which I have given above, it was not.
[45] Mr. Bovey's argument placed considerable reliance on the concept of legitimate expectation. In its decision in In re Findlay [1985] A.C. 318 the House of Lords was concerned with a change of policy on the part of the Home Secretary, the effect of which was that the appellant prisoners had to remain longer in prison than they would have done had that policy not been adopted. Recognising that this was disappointing and distressing for the prisoners who were so affected, Lord Scarman observed, at page 338:"It is said that the refusal to except them from the new policy was an unlawful act on the part of the Secretary of State in that his decision frustrated their expectation but what was their legitimate expectation? Given the substance and purpose of the legislative provisions governing parole, the most that a convicted prisoner can legitimately expect is that his case will be examined individually in the light of whatever policy the Secretary of State sees fit to adopt provided always that the adopted policy is a lawful exercise of the discretion conferred upon him by the statute".
The same approach was taken in the Court of Appeal in R. v. Secretary of State for the Home Department ex parte Hargreaves [1997] 1 WLR 906. See in particular Hirst L.J. at page 919.
[46] The communication to a prisoner such as the appellants of information as to the stage at which his case would be reviewed, or further reviewed, by the Parole Board might have founded a successful challenge to the Ministers' alteration of this where there was no change of policy or misbehaviour on the part of the prisoner. However, that appears to me to be neither here nor there since the legislature has superseded the previous system with a new one and has made provision as to the extent to which steps taken under the previous system should be taken into account in its transitional provisions. As the Advocate depute pointed out, if the 2001 Act had granted to newly convicted prisoners the right to a judicial determination of the punishment part of their sentences, after which they would have the right to have their cases for release adjudicated upon by the Parole Board, but withheld the granting of such rights on a retrospective basis to existing prisoners, this would have been vulnerable to a charge of discrimination in contravention of Article 14 of the Convention. However, the granting of such rights inevitably involves the introduction of decision-making by judges who are independent of the executive and its advisers. This carries with it the possibility that what judges consider to be an appropriate punishment part would exceed the period which had been expected to elapse under the previous system before the case went to the Parole Board for review or further review. [47] I am bound to say that Mr. Bovey's attempt to manoeuvre Article 53 into the argument seemed to me to be highly contrived. It appeared to involve that in interpreting the 2001 Act judges should be regarded as interpreting the Convention, as it were at second hand. How they could and should have introduced a qualification into the clear words of paragraph 13 of the Schedule or, for that matter, section 2(2) of the 1993 Act as amended, was and remained a mystery. [48] For the reasons which I have given above I do not consider that the sentencing judges proceeded on any misinterpretation of the 2001 Act as to the punishment parts which they could impose under that Act or that they failed to have regard to matters which were relevant to the exercise of their discretion. [49] In my view this ground of appeal is not well-founded.B. Article 7(1)
[50] Article 7(1) states:"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
"Judicial recognition and assertion of the human rights defined in the Convention is not a substitute for the processes of democratic government but a complement to them. While a national court does not accord the margin of appreciation recognised by the European Court as a supra-national court, it will give weight to the decisions of a representative legislature and a democratic Government within the discretionary area of judgment accorded to these bodies".
For these reasons I consider that this head of Mr. Bovey's submissions should be rejected.
C. Article 5(1)
[56] Article 5(1) of the Convention states:"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
...".
"Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention".
In that connection he referred to the decision in Özdep v. Turkey (2001) 31 E.H.R.R. 694. For this purpose legislation was an "activity". He emphasised that there was nothing more arbitrary than to take away a person's human rights, whether accidentally or by design.
[58] Mr. Bovey went on to submit that esto the 2001 Act could not be interpreted in such a way as to be compatible with Article 5(1), read with Article 17, it was in violation of them, in so far as it permitted the imposition of periods of imprisonment longer than those which the appellants would otherwise have served. [59] This submission plainly presupposes that according to the domestic law the appellants under the previous system had a right to liberty at some date or stage in their life sentences, of which they were deprived by the orders as to the punishment part of their sentences. It is, however, plain that the appellants did not have such a right, and that their release was entirely at the discretion of the Ministers. Furthermore, they did not at any stage acquire the right to have their case for release considered by the Parole Board. Accordingly the same considerations which led me to reject head (B) of Mr. Bovey's submissions apply also in the case of this head.D. Article 14
[60] Article 14 of the Convention states:"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".
Unlike previous arguments, Mr. Bovey's submissions in reliance on this article did not depend on showing that the "tariffs" or sentences had been made longer. He submitted that, while Article 5 did not guarantee a right to conditional release, the sentencing policy of the 2001 Act gave rise to discrimination by reference to the "status" of the appellants as life prisoners, in violation of Article 14, taken together with Article 5 et separatim Article 6 (cf. Gerger v. Turkey Report by the Commission dated 11 December 1997 at paragraph 78). Mr. Bovey said that his submissions were principled, and were based on expectations arising out of the previous procedures.
[61] Mr. Bovey accepted that, in determining whether discrimination, or lack of discrimination, was in violation of Article 14, it was necessary to consider whether there was an objective and reasonable justification, taking into account the aim and effect of the measures in question and the principles which normally prevailed in democratic societies. There also required to be a reasonable relationship of proportionality between the means employed and the aims which were sought to be realised (N. v. United Kingdom (a decision of the Commission) 13 October 1986). The onus was on the party who sought to justify potentially discriminatory treatment (Derby v. Sweden (1991) 13 EHRR 774 at paragraph 33; and Chassagnou v. France (1999) 29 EHRR 615 at paragraph 113). [62] Mr. Bovey submitted in the first place that the appellants had been treated differently from prisoners in respect of whom there was a PRD and those in respect of whom a certificate had been issued under the 1993 Act or the 1997 Act. For the appellants a hearing and an order under paragraph 12 of the Schedule to the 2001 Act were mandatory; whereas these other categories of prisoners had the right under paragraph 7 to waive their entitlement to a hearing. He pointed out that in the policy memorandum relating to the Bill which became the 2001 Act it was stated at paragraph 51 that life prisoners for whom a PRD had been fixed or recommended, without objection from the senior judiciary, might be eligible to be released before a hearing could be arranged in their cases, and that the additional special provisions for such life prisoners ensured as far as possible that the prisoner was not prejudiced as a result of the new system and that there was due consideration of risk to the public before his release. In the case of prisoners for whom there was a certificate it was stated at paragraph 46 that the Executive considered that the provision of a waiver was appropriate for such life prisoners since they might be satisfied with the length of the punishment part which had already been certified and might not want a further court hearing. Mr. Bovey submitted that these explanations did not assist, but undermined, the discrimination which had been shown by the 2001 Act. [63] In the second place Mr. Bovey submitted that the 2001 Act had failed to treat prisoners such as the appellants differently from those to whom a review of their cases by the Parole Board had not been intimated. A right not to be discriminated against was violated when a State failed to treat differently persons whose situations were significantly different. He referred to Thlimmenos v. Greece (2000) 31 E.H.R.R. 411 at paragraph 44. It was, he said, a very significant matter for a life prisoner to have an appointment with the Parole Board. Given that the prisoners covered by the 2001 Act had been convicted of the same offence and had been given the same life sentence there was no intelligible aim in the treatment of prisoners such as the appellants. Under the 2001 Act, as interpreted by the appeal court in Stewart v. H.M. Advocate 2002 S.C.C.R. 915, the judge who made an order in respect of a punishment part would ignore the date which had been set for the first review by the Parole Board, and hence could unknowingly cause a breach of the Articles on which he founded. Mr. Bovey added that it was unsatisfactory that persons such as the appellants should have to choose between the rights given by the 2001 Act in the light of the Convention, and the right, which was safeguarded by Article 53, not to have their situation made worse. The unlawfulness of the 2001 Act lay in the scope which it gave for prisoners such as the appellants to serve longer sentences than they would have otherwise done. [64] Mr. Bovey went on to submit that it would have been possible to extend the role of judges by providing in the 2001 Act that their advice should be obtained before action was taken on a favourable recommendation of the Parole Board. His essential criticism was directed at paragraph 7 of the Schedule to the 2001 Act, in respect that it failed to provide prisoners such as the appellants with the right to waive their entitlement to a hearing under paragraph 12. [65] In reply the Advocate depute emphasised that the obligation of the State was to accord human rights to all. Those who were existing life prisoners were as much affected by the development of the law relating to the treatment of adult mandatory life sentences as those who received such life sentences after the 2001 Act came into force. The 2001 Act would have been vulnerable to challenge in regard to Article 14 if it had not provided for existing life prisoners to have the right to a judicial determination of the punishment part of their sentences, on the expiry of which they would have the right to have their continued imprisonment adjudicated upon by the Parole Board. [66] The Advocate depute submitted that in the case of prisoners for whom a PRD had been set or had been recommended and where there had been no objection from the senior judiciary, there was no ground for insisting that the punishment part should be determined at a hearing under paragraph 12. Assuming that there was no need for the risk to the public to be reconsidered, there was no ground for their being imprisoned beyond the PRD. This was a distinction which the legislature could legitimately draw. It was entitled to a reasonable degree of latitude in deciding how different categories of life prisoners should be treated. In the case of the appellants, on the other hand, there was no assurance as to when they might be recommended for release, or as to what date it might take place. They had not been favourably assessed in regard to the risk to the public, and views of the senior judiciary in regard to the criminal justice requirements had not been expressed. [67] The Advocate depute went on to submit that it was an artificial distinction for the appellants to challenge the 2001 Act on the basis that a decision had previously been taken by the Ministers that their cases should be considered by the Parole Board. All prisoners had some form of expectation, and in the case of the appellants it was a very limited expectation. The position in Scotland was unlike that in England, where prisoners went forward to the Parole Board on the expiry of a tariff which represented the requirements of punishment. In Scotland the fact that the Ministers accepted the recommendation of the PRC that the case of a prisoner should be considered by the Parole Board did not eliminate the need for the Ministers to consult the senior judiciary after a PRD had been recommended in due course, nor did it exclude the senior judiciary from advising that the criminal justice requirements entailed that the release of the prisoner should be deferred. [68] In my view, when proper allowance is made for the differences and lack of differences which were pointed out by the Advocate depute, and for the latitude which, in my view, is enjoyed by the legislature in determining how different categories of life prisoner should be treated for the purposes of the 2001 Act, there is no sound basis for the assertion that the 2001 Act violated the rights of the appellants under Article 14, as read with either Article 5 or Article 6.E. Article 6(1)
[69] Mr. Bovey went on to complain that the right of the appellants under Article 6(1)to the determination of the charges against them "within a reasonable time" had been violated. He pointed out, under reference to Eckle v. Germany (1982) 5 EHRR 1 that there was no "determination" of a criminal charge as long as the sentence was not definitely fixed (paragraph 77) cf. Arthur, Petitioner 2003 S.L.T. 90. He accepted that, where some time after the disposal of the case a prisoner applied to have it re-considered, the intervening period might require to be left out of account (Löffler v. Austria (2000) 34 E.H.R.R. 1133 at paragraph 19). However, in the present case there was no ground for ignoring the period which had elapsed between the appellants' convictions and the orders as to the punishment part of their sentences. [70] Mr. Bovey said that he did not criticise the introduction of a statutory requirement that the trial judge should make an order in respect of the punishment part when imposing a life sentence, despite the fact that the United Kingdom had all along been a party to the Convention. He did, however, criticise the legislature for requiring the arbitrary re-opening of a criminal case long after the life sentence had been imposed, for the purposes of a sentencing exercise which could not have been foreseen at the time of the trial. His criticism was directed at the length of time which had elapsed, rather than the novelty of the procedure which had been introduced. In this connection he referred to Arvelakis v. Greece 12 July 2001, unreported, in which the court drew attention, at paragraphs 25-26, to the duty of contracting States to organise their legal systems in such a way that their courts could meet each of the requirements of Article 6(1), including the obligation to decide cases within a reasonable time. He also referred to the earlier decision in Anagnostopoulos v. Greece 7 November 2000, unreported, in which the European Court of Human Rights had found that the state had infringed the rights of parties under Article 6(1) by intervening in civil proceedings in a manner which was designed to ensure an outcome which was favourable to it. [71] Mr. Bovey submitted that the fact that the 2001 Act was designed to confer rights on existing prisoners made the outcome in the present cases no more palatable. It was odd that life prisoners who had their appointment with the Parole Board found that their cases were being reopened. He rejected the suggestion that there was any public interest in the judicial determination of the punishment part of a life sentence. It was difficult to say which of the systems, the new or the previous one, provided the public with better protection. Under the previous system the Parole Board had a substantial role, although it was of an advisory nature. It might have been different if the 2001 Act had provided that existing life prisoners might ask for a judicial determination of the punishment part of their sentences. [72] I should add that Mr. Shead invited the court to consider reducing the length of the punishment parts in recognition of the delay since the appellants' convictions. This would have provided, he said, a practical solution for the sentencing judge to adopt. It was a matter for the court's discretion. He referred to Gillespie v. H.M. Advocate 2003 S.L.T. 210, in which the appeal court had reduced the length of the punishment part in view of the delay in the hearing of an appeal against a murder conviction. [73] I am not persuaded that the approach which counsel for the appellants adopted in their submissions was sound. It does not appear to me to make sense to treat a period during which there were no pending proceedings as part of the period which is relevant for the purposes of Article 6(1). The decision in Löffler v. Austria provides one example of a situation in which time elapsing since the original determination of the case can properly be left out of account. Another is provided by I.J.L., G.M.R. and A.K.P. v. United Kingdom (2001) 33 E.H.R.R. 225. In ascertaining the period to be taken into consideration in that case the court rejected the proposition that the period between the close of proceedings in the Court of Appeal and the date of the Home Secretary's decision to refer their cases back to the court should be included. The court remarked at para. 30 that it "cannot accept that that period was in any way characterised by determination of the criminal charges against them". [74] It is also important to bear in mind, as was emphasised by the Advocate depute, that until the stage at which the 2001 Act was enacted, it had not been considered, in the light of the jurisprudence relating to the Convention, that it was necessary to have a judicial determination of the punishment part of an adult mandatory life sentence. Treating the Convention as a living document, the European Court of Human Rights in Stafford v. United Kingdom reviewed the position "in the light of present-day conditions" (paragraph 69). Thus it would not be correct for this court to proceed on the unrealistic hypothesis that Stafford v. United Kingdom had been decided at the time when each of the appellants were sentenced. It could hardly be objectionable for the domestic law to respond to what were perceived as developments in the European jurisprudence which affected existing life prisoners as well as those who were newly convicted. On any view it does not appear to be correct, as a general proposition, that it is incompatible with Article 6(1) for a sentencing exercise to be carried out some years after the life sentence was imposed. As Lord Hutton pointed out in R. v. Lichniak [2002] 3 WLR 1834 at paragraph 35, it was not arbitrary in the English system to postpone to the end of the tariff period the decision whether a person who had committed a murder would be a danger to the public if released, rather than decide this at the time of the trial. [75] In these circumstances I do not consider that the enactment of the 2001 Act, in so far as it required the making of orders for the punishment part of life sentences, such as those of the appellants, was unlawful in respect that it was in violation of their rights under Article 6(1).The petitions for the exercise of the nobile officium
[76] I should add that, even if I had come to a contrary view as to whether the submissions for the appellants were well-founded in respect of either head (D) or head (E), it would have been inappropriate for this court, in the exercise of its nobile officium not merely to quash the punishment parts as being unlawful but also to substitute the shorter periods referred to in the petitions for the appellants Meek and Nicol. While it may be correct that it should not be taken from the 2001 Act that the court is unable to quash what was unlawful, it does not follow that in the exercise of the nobile officium it can take upon itself the statutory function of making a fresh determination. For that purpose the appellants' cases would have required to be considered afresh in accordance with the statutory procedure.Submissions on behalf of the appellant Mr. McMurray
[77] In the first place Mr. Shead founded on the fact that in the case of the appellant McMurray the trial judge had made a recommendation under section 205 of the Criminal Procedure (Scotland) Act 1975 that the minimum period which should elapse before he was released should be 20 years. Such a recommendation was not binding on the Ministers, but it would nevertheless be taken into account by the Parole Board in deciding whether the prisoner's release should be recommended. Mr. Shead submitted that it was, in effect, the fixing of a tariff. In this connection he pointed out that in McGuire v. H.M. Advocate 1995 S.C.C.R. 776 the appeal court observed at page 779 that the effect of a recommendation would be to tie the hands of the Parole Board, and, through them, of the Secretary of State as to the date of release of the appellant on life licence. If a recommendation was made without reference to the risk to the public it had the same function as a punishment part. It was also to be noted that the senior judiciary rarely advised that criminal justice requirements would not be satisfied if the life prisoner was released on the PRD. Mr. Shead said that although a recommendation could be based on the gravity of the crime or the risk to the public, what mattered was the fact of the recommendation rather than the reasons for it. As a consequence of the recommendation which had been made in his case the appellant had anticipated, prior to the enactment of the 2001 Act, that he would be considered for release in 2005, or at least that his case would be reviewed by the Parole Board at that stage. [78] Mr. Shead also relied on the history of the appellant's case. When his first review took place in February 1996, the Parole Board took the view that he had not yet taken all the courses which he should have done. A later review, which had been expected to take place in August 2001, was cancelled owing to the enactment of the 2001 Act. In the meantime he had been transferred to an open prison, and had undertaken placements outside prison. However, shortly after the cancellation of the arrangement for him to go before the Parole Board, he was returned to closed conditions. The order for the punishment part of 30 years had had a pronounced and palpable affect on him. [79] While it was correct that distinctions could be drawn - as the court had done in Stewart v. H.M. Advocate - between the exercise of making a recommendation and that of fixing a punishment part, there was in general no justification for making an order for a punishment part which exceeded the period recommended by the trial judge. In view of the appellant's expectation and considerations of fairness, the recommended period should represent the ceiling below which the punishment part should be fixed. This was a logical consequence of paragraph 14 of the Schedule to the 2001 Act which stated:"It shall not be a ground of appeal in relation to the part of the sentence specified in the order made under paragraph 12 above that the court had regard to any certificate as is referred to in paragraph 1(b) above or to any recommendation made under section 205(4) of the 1995 Act as to the minimum period which should elapse before the Scottish Ministers release the prisoner on licence".
In any event there was nothing in the circumstances of the present case which would justify a punishment part in excess of the period which had been recommended. On the face of it the appellant was not covered by the "20 year policy". On any view due deference should be paid to the trial judge's assessment of the relative gravity of the offence. While the legislature had sought to confer a benefit, the punishment part which had been fixed in the case of the appellant had caused a manifest injustice. There had been a capricious and significant interference with his rights.
[80] Mr. Shead drew attention to research which showed that, in a number of cases in which the trial judge had made a recommendation, the life prisoner was released at the end of the recommended period. This indicated that the prisoners had previously been prepared for their release. [81] The sentencing judge had not been prepared to take into account the history relating to the appellants' expected review by the Parole Board. This was artificial. He pointed out that under section 104(1)(c) of the 1995 Act the appeal court was entitled to take account of any circumstances relevant to the case which were not before the trial judge. Many things might have a bearing on the disposal of a case, and no hard and fast line should be drawn. [82] Mr. Shead submitted in summary that it was unlawful for the sentencing judge to disregard the recommendation which had been made by the trial judge. In any event the recommendation was a factor which should have been taken into account. In regard to the legitimate expectation of the appellant, he contrasted the provisional and uncommunicated decision of the Home Secretary in R. v. Secretary of State for the Home Department ex parte Hindley [2001] A.C. 411 cf. R. v. North and East Devon Health Authority ex parte Coughlan [2001] QB 213. [83] In the second place Mr. Shead argued that the practical effect of the punishment part in the case of the appellant McMurray was that it represented a whole life tariff. He was 44 years of age when he was convicted. The period which had been selected was disproportionate to the legitimate aim of an order under paragraph 12. It was invalid since it was in contravention of the appellant's rights under Article 3 which provided: "No one shall be subjected to torture or to inhuman or degrading treatment or punishment". The punishment part was of such a length as to be degrading to human dignity. Alternatively it was arbitrarily imposed, in the sense that it was not made in accordance with ascertained or ascertainable standards. He referred to R. v. Lichniak, in which Lord Bingham of Cornhill observed at paragraph 16 that the European Convention on Human Rights was concerned to prevent significant breaches, and pointed out that it had been held that treatment must attain a certain level of severity before it breached Article 3. He added, with reference to Article 5, that in determining the arbitrariness of any detention regard must be had to the legitimacy of the aim of detention and the proportionality of the detention in relation to that aim cf. R. v. Smith (Edward Dewey) [1987] 1 S.C.R. 1045. [84] In the third place Mr. Shead submitted that it was clear from his report that the sentencing judge employed the guidelines on the setting of tariffs which had been issued by the Lord Chief Justice of England and Wales. They had not been referred to at the hearing, and if the sentencing judge was intending to use them he should have made that known. In Scotland guidance was provided by the appeal court when giving the reasons for its decisions in regard to punishment parts. What the sentencing judge had done was fundamentally unfair and contravened the appellant's right to a fair trial in accordance with Article 6 of the Convention. [85] In considering these criticisms of the sentencing judge, I should bear in mind that for the present I am concerned only with the question whether he acted unlawfully. I am not persuaded that it was unlawful for him to exceed the period of 20 years as the punishment part. The recommendation which was made by the trial judge represented advice to the Ministers. It was not a determination as to the time which the appellant should remain in prison. It expressed his view as to the minimum period which should elapse. As the Advocate depute pointed out, it could not be assumed that the trial judge would have considered that 20 years was the maximum which the appellant should serve for a given purpose. That is not to say, of course, that period recommended by the trial judge should not be regarded as a useful indication of the relative gravity of the case, as one of the factors which might be significant in the determination of the length of the punishment part. However, that is a matter for this court in considering whether the punishment part was excessive. [86] As regards the claim that the punishment part is unlawful in respect that it was incompatible with the appellant's rights under Article 3, it requires to be borne in mind that, as was held in R. v. Lichniak, a mandatory life sentence is not in itself arbitrary or disproportionate, and that in R. v. Secretary of State for the Home Department ex parte Hindley it was held that a whole life tariff was not necessarily unlawful. Thus the fact that a prisoner might die in prison does not necessarily indicate that the punishment part is unlawful. The test for a breach of Article 3 is a high one. The Advocate depute referred the court to the decision of the Privy Council in Reyes v. The Queen [2000] 2 W.L.R. 1034, in which Lord Bingham of Cornhill at paragraph 30 referred to the judgment of Lamer J. in R. v. Smith at page 1072 where he compared Article 3 with the provision of the Canadian Charter in regard to "cruel and unusual punishments". The latter test required that the punishment prescribed should be so excessive as to outrage standards of decency or, in other words, grossly disproportionate to what would have been appropriate. I am of the opinion that, whereas there may well be a question as to whether the punishment part in the present case was excessive, it does not represent a violation of Article 3. [87] As regards the use by the sentencing judge of the guidelines issued by the Lord Chief Justice, I would repeat, as was said by the appeal court in Brown v. H.M. Advocate 20 November 2002, that these guidelines do not apply in Scotland. They are available to judges, as to anyone else, for their information. They may be useful, as was observed in Brown at paragraph 7, for drawing attention to matters which may be relevant in the particular case, but the stratification of sentences which is set out in those guidelines does not apply in Scotland. As Mr. Shead pointed out, in Scotland guidance has been given by the appeal court (see, e.g. Stewart v. H.M. Advocate and Walker v. H.M. Advocate 2003 SLT 130). While it was certainly unfortunate that the trial judge seems to have placed reliance on those guidelines without referring to that matter in open court, this does not seem to me to raise a question as to whether he acted unlawfully. This again is a matter which will require to be considered in the context of whether the punishment part was excessive. [88] For the reasons which I have given in this Opinion I move your Lordships to reject the grounds of appeal which relate to the lawfulness of the punishment parts or the alleged misinterpretation of the law. These comprise grounds 2 and 5 in the case of Flynn, grounds 3, 4 and 5 in the case of Meek, grounds 2, 4 and 5 in the case of Nicol and ground 2 (except in so far as it is concerned with the question whether the punishment part was excessive), 3, 4 and 5 in the case of McMurray. I also more your Lordships to direct that these appeals should be put out for further hearing in regard to the grounds of appeal which raise the question whether the punishment parts were excessive. Flynn & Ors v. Her Majesty's Advocate [2003] ScotHC 33 (04 June 2003)|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Osborne Lord Hamilton
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Appeal Nos: XC398/02 XC170/03 XC85/02 XC169/03 OPINION OF LORD OSBORNE in APPEALS AGAINST SENTENCE by PATRICK FLYNN, PETER MITCHELL MEEK, JOHN GARY NICOL and PETER McMURRAY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: M. Bovey, Q.C., Blair; Bennett & Robertson: M. Bovey, Q.C., Blair; Bennett & Robertson: . Bovey, Q.C., Barr; Bennett & Robertson:
C. Shead, Edwards; McCusker McElroy
Respondent: J. Peoples, Q.C., A.D.; Crown Agent
4 June 2003
[89] I have had the benefit of reading the Opinion of your Lordship in the chair. I find that I am in complete agreement with its contents, to which there is nothing that I can usefully add. Flynn & Ors v. Her Majesty's Advocate [2003] ScotHC 33 (04 June 2003)|
APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Osborne Lord Hamilton
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Appeal Nos: XC398/02 XC170/03 XC85/02 XC169/03 OPINION OF LORD HAMILTON in APPEALS AGAINST SENTENCE by PATRICK FLYNN, PETER MITCHELL MEEK, JOHN GARY NICOL and PETER McMURRAY Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellants: M. Bovey, Q.C., Blair; Bennett & Robertson: M. Bovey, Q.C., Blair; Bennett & Robertson: . Bovey, Q.C., Barr; Bennett & Robertson:
C. Shead, Edwards; McCusker McElroy
Respondent: J. Peoples, Q.C., A.D.; Crown Agent
4 June 2003
[90] I gratefully acknowledge and adopt the narrative given by your Lordship in the chair of the background circumstances pertinent to these cases and of the submissions of counsel. I agree with all the conclusions reached by your Lordship and the reasons given for them. I concur in the disposals proposed. There are only a few observations of my own which I would wish to add.The nature and effect of a PRC recommendation
[91] The Parole Board for Scotland was first constituted under Part III of the Criminal Justice Act 1967 with the advisory duties there specified. The relative statutory provisions were subsequently replaced for Scotland by section 18 of and Schedule 1 to the Prisons (Scotland) Act 1989; certain amendments were later effected by section 20 of and Schedule 2 to the Prisoners and Criminal Proceedings (Scotland) Act 1993.
[92] According to the description provided to us in the course of the hearing, the Provisional Review Committee ("PRC") was established administratively in 1980 to replace a former system under which the cases of all prisoners mandatorily sentenced to life imprisonment automatically received a first formal review by the Parole Board after they had served about 61/2 years of their respective sentences. That former system, we were led to understand, was found unsatisfactory because it resulted in too many nugatory reviews, which was not only wasteful of resources, given the detailed manner in which these reviews are conducted, but also unhelpful to life prisoners and their families if it was clear, from the circumstances of the offence, that release was unlikely for many years. The system established in 1980 was conceived as "a more selective process founded upon a more broadly based consideration". It was, in effect, a screening process which allowed a view to be formed as to when, in the case of each prisoner considered as an individual, it might be appropriate for his position first to be considered by the Parole Board. It was, as its predecessor had been, a purely administrative arrangement. It was designed to improve efficiency, as also to avoid the raising of unwarranted hopes on the part of prisoners and their families. [93] The administrative origin of the PRC, as well as the nature of its composition and the recommendatory character of its disposals, makes it, in my view, plain beyond peradventure that a period recommended by it in any individual case cannot be regarded as a "tariff" or in any way as a punishment period. Nor can any period for first review fixed by the Secretary of State (or his successors the Scottish Ministers) in light of any such recommendation be so regarded. Such disposals were, in my view, truly and simply aspects of the management of the indeterminate sentence of life imprisonment which in each case had been imposed. They did not constitute a determination of any finite term as reflecting the requirements of retribution and deterrence, such as to satisfy the sentence except in so far as concerned any continuing risk. They conferred no substantive right on individual prisoners to have the periods so recommended or fixed treated as exhaustive of the criminal justice elements of the life sentence. Nor did they give rise to any legitimate expectation, in the proper legal sense of that expression, that such periods would be so treated. The existence of the particular administrative system and its operation in part in relation to the appellants cannot of themselves preclude subsequent changes being made to that system, including steps which may disappoint the appellants' hopes or expectations, not least where those changes are effected by primary legislation (In re Findlay [1985] A.C. 318, per Lord Scarman at page 338; see also R. v. Secretary of State, ex parte Hargreaves [1997] 1W.L.R. 906). [94] In these circumstances the legislative changes made by the 2001 Act could not and did not, in my view, adversely impinge upon any pre-existing right or legitimate expectation enjoyed by serving life prisoners. An essential premise of Mr Bovey's submissions A, B and C is accordingly, in my view, unsound.The nature and effect of a recommendation under section 205(4) of the Criminal Procedure (Scotland) Act 1995 or its statutory predecessors
[95] The Murder (Abolition of Death Penalty) Act 1965 abolished capital punishment in the case of persons convicted in Great Britain of murder. The debates which preceded its enactment involved much controversy, including issues as to whether the death penalty should be retained for certain murders and whether the penalty for murder should be a determinate period of imprisonment. A feature of the legislation which emerged was the empowerment of a court, on sentencing any person convicted of murder to imprisonment for life, at the same time to declare the period which it recommended to the Secretary of State as the minimum period which in its view should elapse before the Secretary of State ordered the release of that person on licence under the relative provisions then in force for England and Wales and for Scotland respectively. The court was not obliged to make any such declaration. Any declaration it did make was a recommendation only, and accordingly not binding on the Secretary of State in the exercise of his power to release on licence. Any declaration was to be in respect of the minimum period which, in the court's view, should elapse before release on licence was ordered. No right of appeal against any such recommendation was at that stage conferred. [96] This provision can, in my view, properly be seen as intended to afford the trial judge an opportunity of marking publicly, on behalf of the community and in the context of the evidence before the court, the gravity of the particular circumstances of the offence and/or of the offender. Being pronounced by the judge at the time of sentencing and in the public forum of the court, such a declaration was a means of making manifest the seriousness, particularly in more atrocious cases, with which the particular circumstances were viewed. The 1965 Act also included, as a distinct provision, section 2 by which no person convicted of murder (whether or not a recommendation had been made) should be released on licence unless the Secretary of State had, prior to such release, consulted (in Scotland) the Lord Justice General, together with the trial judge, if available. [97] In England and Wales the power conferred by section 1(2), although exercised on some occasions, appears to have fallen into desuetude. In Scotland it did not. Rather, section 43 of the Criminal Justice (Scotland) Act 1980 amended the relative legislation by inserting section 205A in the Criminal Procedure (Scotland) Act 1975 to require a judge making a recommendation to state his reasons for doing so; it also provided for a right of appeal against any such recommendation. This development points to the need for a reasoned basis for any recommendation. [98] The power to make a recommendation was sparingly exercised. In Casey v H.M. Advocate 1993 S.C.C.R. 453 the court indicated that it would not expect a trial judge to exercise the power unless the period he had in mind was one of at least twelve years. That case also identified two considerations (the circumstances of the offence and any danger to the public) as being usually present, singly or in combination, when the power had in earlier cases been exercised. The court endorsed that apparent practice, noting, however, that in any case it was for the trial judge to decide in the exercise of his discretion whether or not to make a recommendation. Subsequently there was what might be seen as some discouragement of the exercise of the power unless the circumstances plainly called for it (McGuire v H.M. Advocate 1995 S.C.C.R. 776). [99] Against that background it is, in my view, plain that, in a case where a trial judge has exercised the power to make a recommendation, that in no way was, or could reasonably have be regarded by the prisoner or others as being, the setting of a term which exhausted the requirements of retribution and deterrence. The function which the court was exercising was quite different, even if the atrociousness of the particular conduct was a factor in the exercise of the discretion. Any period declared was a minimum and not a maximum period. The announcement was a recommendation to the Secretary of State, not a determination binding on him. Even if it is accurate, which I respectfully doubt, to describe the effect of a recommendation as being "to tie the hands of the Parole Board, and through them of the Secretary of State, as to the date of release of the appellant on life licence" (McGuire atp. 779F-G), the "tying" was not such as to prevent the Secretary of State, if he saw fit, from releasing the prisoner at any later or earlier time, albeit the recommendation would be taken into account by him and by the Parole Board in deciding on release (Casey at pp. 456G-457A).
[100] In these circumstances Mr Shead's submission that a recommended period represented a practical ceiling below which the punishment part should under the 2001 Act be fixed must, in my view, be rejected.