APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal Nos: XC398/02
OPINION OF THE COURT
THE LORD JUSTICE CLERK
(First) PATRICK ANTHONY FLYNN;
(Second) PETER MITCHELL MEEK;
(Third) JOHN GARY NICOL; and
(Fourth) PETER McMURRAY
HER MAJESTY'S ADVOCATE
First and second appellants: Bovey QC, Blair; Bennett and Robertson
Third appellant: Bovey QC, Barr; Bennett and Robertson
Fourth appellant: Shead, Meehan; Gilfedder Macinnes
Respondent: The Lord Advocate (Boyd QC), Miss Burke AD; Crown Agent
15 October 2004
Introduction The appellants are adult mandatory life prisoners. All of them were sentenced before the coming into force of the Convention Rights (Compliance) (Scotland) Act 2001 (the 2001 Act). The details of the sentences are set out in the decision of the Judicial Committee of the Privy Council to which we shall refer in due course. The appeal of the appellant Flynn was abandoned in the course of the hearing.  Upon the introduction of human rights legislation in Scotland, the legislation governing the release on licence of life sentence prisoners had to be reviewed. The decision when a case should be referred to the Parole Board, and the decision whether to accept a Parole Board recommendation that the prisoner be released on licence, lay in the hands of the relevant minister, in the latter case after consultation with the Lord Justice General and the trial judge, if he were available. That regime seemed to be in breach of article 6 of the European Convention on Human Rights (the Convention) since these were sentencing functions that ought properly to be exercised judicially. One of the purposes of the 2001 Act was to make the determination of the minimum period of imprisonment a matter for judicial decision.
The 2001 Act Section 1 of the 2001 Act amended section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as already amended) (the 1993 Act), with effect from 8 October 2001, by providing that, when imposing a life sentence, the court should make an order specifying the period that was to be served as the punishment part of the sentence before the prisoner's release on licence could be considered by the Parole Board. In this way the prisoner knew from the outset the earliest date at which he could be released on licence and the Parole Board could discharge its functions at a stage by which the punitive element of the sentence had already been served.  Section 2(2) of the 1993 Act, as thereby amended, provides that the punishment part is to be
"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 -
 It was necessary for there to be transitional provisions for existing life sentence prisoners to ensure that such prisoners would be neither better nor worse off than those to be sentenced after the Act came into force. Paragraph 3 of the Schedule to the 2001 Act, which applied to each of the appellants, provided that, as soon as reasonably practicable after the Act came into force, the Scottish Ministers were to refer the case of an existing life sentence prisoner to the High Court for a hearing (para 12) at which the court was to make 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 (para 13)."
The position of the appellants when the 2001 Act came into force Before the 2001 Act came into force, the Preliminary Review Committee (PRC) had considered each of these cases. The PRC considered the appellant Meek's case in 1999. Thereafter the Scottish Executive Justice Department notified him that it had accepted the recommendation of the PRC that the Parole Board should carry out its first formal review of his case after he had served eight years in custody, that is to say in or about February 2003. The PRC considered the appellant Nicol's case in 1999. Thereafter the Justice Department notified him that it had accepted the recommendation of the PRC that the Board should conduct its first formal review after he had served ten years in custody, that is to say in or about August 2005. The PRC considered the appellant McMurray's case in 1989 and in 1995. In 1996 the Secretary of State notified him that he had accepted the recommendation of the PRC that the Board should conduct its first formal review after he had served fourteen years in custody, that is to say in or about July 1999. As it happened, the Board carried out the first review in April 2000. McMurray was then notified that his case would be considered again in April 2002.  Punishment part hearings were duly held in these cases, with significant results. In the case of Meek the court fixed the punishment part at fourteen years. That meant that his case could not be reviewed by the Board until February 2009. In the case of Nicol, the court fixed the punishment part at fourteen years. That meant that his case could not be reviewed until August 2009. In the case of McMurray, the court fixed the punishment part at thirty years. That meant that his case could not be reviewed until November 2015.  In Stewart v HM Adv (2002 SLT 1307) this court decided that the fixing of the punishment part was a retrospective exercise in which the judge put himself in the position that he, or the trial judge, would have been in at the date on which the life sentence was imposed, and had to decide what punishment part would have been fixed on the facts known at that date. The court understood that the fixing of a punishment part might well cut across arrangements already made for a Parole Board review; but it took the view that that problem was a matter for the legislature. The court took the same approach in McCreaddie v HM Adv (2002 SLT 1311).
The human rights challenge The appellants appealed against the punishment parts fixed on the ground inter alia that the transitional provisions of the 2001 Act were beyond the competence of the Scottish Parliament since they made it possible that a punishment part order could frustrate expectations of review that a prisoner had been formally given before the Act came into force, as had happened in each of these cases. This court, following the ratio of Stewart v HM Adv (supra) refused the appeals (Flynn and Others v HM Adv, 2003 SLT 954).  The appellants appealed to the Privy Council. The issue before the Judicial Committee was one of competence; but to reach its decision on that point, the Judicial Committee had to consider the soundness of the decision in Stewart v HM Adv (supra). The Judicial Committee accepted that the fixing of the punishment part in each case deprived the appellant of the review that he had been led to expect. The majority were of the view that article 7 of the Convention was engaged, and it appears that they considered that if the interpretation in Stewart v HM Adv (supra) were sound, the transitional provisions would not comply with the Convention. However, having regard to section 101 of the Scotland Act 1998 and section 3(1) of the Human Rights Act 1998, the Committee concluded that the legislation could be read in a way that was compliant with the Convention if the court, when fixing the punishment part, took into account events relating to reviews of the sentence by the Parole Board. That, in the view of the Judicial Committee, was how these provisions should be construed. That approach was incompatible with Stewart v HM Adv (supra).  It is now for us to consider the merits of these appeals with the guidance given by the Judicial Committee.
Submissions for the parties Counsel for the defence and the Lord Advocate agreed in submitting to us that, in the light of the Judicial Committee's decision, Stewart v HM Adv (supra) should be overruled. Beyond that, they differed in their interpretation of the Judicial Committee's decision.  Counsel for the appellants submitted that the ratio of that decision was that it would be contrary to article 7 of the Convention for the provisions of the 2001 Act to result in an appellant's serving longer in custody before his first, or next, review by the Parole Board. The only practical way to ensure that that guiding principle was observed was to set the date fixed for the relevant review in each case as a ceiling on the proper punishment part to be imposed. Counsel also submitted that, even if the parole questions were left out of account, the punishment part in each case was too long anyhow.  The Lord Advocate submitted that the fixing of the review date in each case was merely a factor to be taken into account, among others, in the fixing of the punishment part. If the court were to conclude that the review fixed in any of these cases would not have resulted in the appellant's being released, there was no reason why the court should fix the punishment part by reference to that date. The Lord Advocate produced certain statistical information which, while not providing us with a complete survey of the working of the parole system in relation to adult mandatory life prisoners, nevertheless satisfies us that few such prisoners are given a provisional release date at first review. On the contrary, in most cases the first review is merely the beginning of a protracted process, involving several reviews, in the course of which the prisoner is prepared in various ways for freedom, typically over a period of two to three years (cf Life Prisoners : A Report by the SPS Lifer Policy, Management and Review Group, Scottish Prison Service, February 2001).
The approach now to be taken in transitional cases We agree with the Lord Advocate and counsel for the appellants that in light of the decision of the Judicial Committee we should overrule Stewart v HM Adv (supra). We shall overrule that case together with McCreaddie v HM Adv (supra) which was decided on the same principle.  The question then arises as to the manner in which subsequent developments in the management of a life sentence should be taken into account in transitional cases such as these.  The central submission for the appellants was that the only course open to us was to fix the punishment part in each case at a period that would not extend beyond the date of the first or next review that had been fixed. In our opinion, that submission is unsound and is based on a misunderstanding of the Privy Council decision.  In deciding on the appellants' devolution minutes, the Judicial Committee was engaged on a fundamentally different exercise from that which we now have to undertake. The question before the Judicial Committee was whether the transitional provisions of the legislation complied with the Convention. The members of the Judicial Committee adopted an approach to interpretation by means of which they were able to read the transitional provisions in a way that would be compliant with the Convention. The Convention right that has to be respected in the case of each of these appellants is the right to be considered for release under the system that existed when the transitional provisions came into effect (Lord Hope of Craighead at para 46). On that approach, the members of the Committee were of the view that in fixing the punishment part in transitional cases such as these the judge should take into account and give appropriate weight to the present state of the management of the prisoner's life sentence and, in particular, the occurrence of developments that had a bearing upon his prospects of release on licence (cf Lord Bingham of Cornhill at para 7; Lord Hope of Craighead at para 56; Lord Rodger of Earlsferry at para 75).  In our view, the decision of the Judicial Committee establishes only that the proposed review in each case was a relevant, but not decisive, factor in the fixing of the punishment part. The weight to be given to it depends on the appellant's prospects of release at the relevant date. At that date there could be adequate information before the court to indicate that the inevitable outcome of the review would be a refusal and a deferment of further consideration of the case; for example, where the prisoner had failed drug tests or committed disciplinary offences; or had refused to take part in training programmes leading to his release, or had committed crimes when on unsupervised leave. The submission for the appellants would mean that even in such a case the extent of the punishment part would be limited by the mere fixing of a review date. In our view, that cannot be correct.  The submission for the appellants is also, in our view, at variance with the facts. The undisputed information tendered by the Lord Advocate shows that first reviews only rarely result in the prisoner's release and that many subsequent reviews are unsuccessful.  Since we consider that the review date in each of these cases need not constitute the terminal date of the punishment part, we shall now reconsider each case on a wider basis; and shall do so in two stages.  In our view, the logical starting point is, in keeping with the hypothesis on which paragraph 13 is based, to consider what punishment part would have been set in each case if it had been set at the date of the sentence. We shall therefore first decide whether, on the criteria specified in section 2(2) of the 1993 Act, as amended, and with all subsequent events being disregarded, the punishment part that has been set in each case was of appropriate length. If it was not, we shall vary it. Having thus decided what punishment part would have been appropriate if imposed at the date of the sentence, we shall then look at subsequent events having a possible bearing on the appellant's prospects of release and decide what weight, if any, to give to them in all the circumstances by way of adjustment to the punishment part.
Decisions on the individual appeals
Peter Mitchell Meek This appellant was sentenced on 2 June 1995. He was then aged 57. His sentence was later backdated to 9 February 1995.  As is clear from the reports of the trial judge and of the judge who imposed the punishment part, this was a murder committed with extreme violence against a drunken female victim. It can, however, be said in the appellant's favour that he had allowed the victim, who was a helpless alcoholic, to live in his home as an act of compassion and that thereafter he had had much to endure in respect of her behaviour in the house. We need not go into the details. Shortly before the murder the appellant took the victim to Bellsdyke Hospital, but she refused treatment there. The appellant had only a minor criminal record.  In all the circumstances, we consider that the punishment part of 14 years was excessive. We consider that a punishment part of 12 years would have been appropriate in this case if fixed in accordance with section 2(2) of the 1993 Act and without regard to subsequent events.  We therefore proceed to consider to what extent, if any, we should take account of subsequent events having a bearing upon the probable date of the appellant's release.  All the information before us demonstrates that the appellant has been a model prisoner throughout his sentence. When the punishment part was set, he was well on course for release and had had eight special escorted leaves (SELs). He had been given low security status.  Furthermore, in recent years he has suffered from a serious cardiac condition. He is now aged 67. He also has the support of his wife and daughter with whom he will be reunited upon his release.  In these circumstances we consider that if matters of this kind had been taken into account in the fixing of the punishment part, the punishment part would have been fixed on the basis that there was a high degree of probability of the appellant's early release.  In these circumstances we shall allow the appeal and substitute a punishment part of 10 years. The effect of that will be that the Parole Board will be in a position to consider the appellant's release on or after 9 February 2005.
John Gary Nichol This appellant was sentenced on 6 December 1995. He was then aged 21. His sentence was backdated to 6 August 1995.  The appellant committed this murder with the use of a sword with which he deliberately armed himself before setting upon the deceased. In the course of the attack he ignored a bystander's plea to desist. He continued with the attack after the victim was lying helpless on the ground.  Counsel for the appellant represented to us that at the time of the offence the appellant was suffering from an illness akin to post traumatic stress disorder in consequence of the tragic death of his youngest brother. We are not persuaded that that is a factor to which we should give any great weight and, in any event, counsel's assertion on this point was not medically vouched. It was supported only by a psychologist's report.  In all the circumstances we consider that the punishment part of 14 years that was imposed in August 2002 was appropriate, regard being had to the seriousness of the crime.  By the date when the punishment part was imposed the appellant had already had five SELs; but on the information available to us it is obvious that he still had a considerable way to go by way of preparation for release. We conclude that there was little, if any, likelihood of his being released at the first review date. On the contrary, we consider that at that date his prospects of release on licence were nebulous at best.  Since the punishment part was imposed, the appellant has been involved in two significant incidents while in custody. In September/October 2003 he was found to be in possession of a bottle of urine and opiate-based drugs. He was then re-graded from a low to a medium security category. Within the last two days he has failed a drugs test for opiates. We mention this to demonstrate that he has not been a model prisoner.  We proceed on the basis that the appellant would have had no realistic prospects of release at a first review date in August 2005. In view of the inherently speculative nature of the exercise that we have to undertake, we shall make assumptions as favourable to the appellant as can reasonably be made regarding his prospects of release. Proceeding on that basis, we shall allow the appeal and reduce the punishment part to 13 years which will enable the Parole Board to consider his release on or after 6 August 2008.
Peter McMurray This appellant was sentenced on 14 November 1985. He was then aged 44. His sentence has not been backdated.  This is by far the gravest of the crimes with which we have to deal in these appeals. The appellant murdered three individuals with a shotgun. He did so with premeditation. The jury rejected his defences of insanity and diminished responsibility. The appellant was a first offender.  In view of the gravity of the offence we consider that a lengthy punishment part was appropriate. The trial judge had made a minimum recommendation of 20 years. Lord McEwan imposed a punishment part of 30 years. In our opinion, before one even considers subsequent events, it is clear that the punishment part imposed was excessive. In our view a punishment part of 20 years would have adequately reflected the gravity of the crime.  It is clear that the appellant has been a model prisoner. He has co-operated in all relevant training programmes during his time in prison. He has a low security status. He has enjoyed the support of his family. At the date on which the punishment part was imposed, he was in "top end" conditions, that is to say conditions that would take him up to the point of release. It was reasonable to conclude that his release was imminent. On the imposition of the punishment part, he had to be returned to secure conditions and his earliest review date was deferred for more than 12 years. Despite this setback, he has continued to be a model prisoner.  We shall allow the appeal. In all the circumstances we consider that to reflect the likelihood of the appellant's early release the punishment part should, in keeping with the decision of the Judicial Committee, be moderated to 18 years. The punishment part will therefore have expired on 26 July 2003, with the result that the appellant's release can be immediately considered by the Parole Board.