APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: XC31/05
OPINION OF THE COURT
delivered by LORD PENROSE
THE REFERENCE by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION
in the case
HER MAJESTY'S ADVOCATE
Appellant: Jackson, Q.C., O'Rourke; Gillespie Macandrew, W.S.
Respondent: Lamb, Q.C., A.D.; Crown Agent
30 June 2005 William Stewart was convicted of murder at the High Court at Edinburgh on 17 December 1993. He was sentenced to life imprisonment, later backdated to 30 August 2003. When the Convention Rights (Compliance) Scotland Act came into force, his case was referred to the High Court for an order to be made under paragraph 13 of the schedule to that Act specifying the punishment part of the sentence. Lord Cameron of Lochbroom, who had presided at the trial, fixed the relevant part of the sentence at 14 years. On appeal, that period was sustained, in the light of the law as then understood, and the appellant's appeal was refused. The early history of the case was set out fully in the opinion of the court, delivered by the Lord Justice General, in Stewart v Lord Advocate 2002 SCCR 915.  Following the decisions in Flynn v Lord Advocate of the Privy Council in 2004 JC 1, and the court in 2004 SCCR 702 (when Stewart was over-ruled), the Scottish Criminal Cases Review Commission referred the case of new to the court on Mr Stewart's application, stating:
"The applicant's grounds challenge the setting of his punishment part under the Convention Rights (Compliance) Scotland Act 2001. The Commission is of the view that the applicant's grounds essentially amount to his maintaining that the setting of his punishment part proceeded upon a misinterpretation of the 2001 Act. Accordingly, the applicant was wrongly denied the benefit of having his progress in custody considered, particularly the fact that the Preliminary Review Committee had set a date for first review of his case by the Parole Board ... "
The Commission concluded that the failure of the court to have regard to events which followed the conviction reflected an erroneous interpretation of the transitional provisions of the 2001 Act, and that there might accordingly have been a miscarriage of justice. Mr Stewart thereafter lodged a note of appeal in terms of section 110 of the Criminal Procedure (Scotland) Act 1995, setting out fresh grounds of appeal which reflected the approach of the Commission. In the circumstances it was not, and could not reasonably have been, suggested that Mr Stewart was not entitled to have his challenge of the punishment part of his sentence considered of new. In view of some of the observations made by counsel in the course of the hearing, it is perhaps timely to note the terms of certain of the provisions in Part XA of the 1995 Act as amended. Section 194D regulates the procedure to be adopted by the Commission in considering whether to make a reference, and obliges the Commission to give statements of their reasons for their decision. A case may only be referred where, in terms of section 194C the Commission believe that a miscarriage of justice may have occurred and that it is in the interests of justice that a reference should be made. Section 194B provides that where the Commission refers a solemn case:
"the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under Part VIII ... of this Act."
And so, on 11 March 2005, a note of appeal against sentence was lodged on behalf of Mr Stewart in terms of section 110 of the Act. The powers of the court in disposing of that appeal include the powers set out in section 118 (4), and in particular the power, having regard to all the circumstances, to quash the existing sentence and to pass another sentence, whether more or less severe, in substitution. Mr Jackson's submission that it would be 'an affront to justice', as he put it, to increase a punishment part, or to increase the reference level from which to proceed to a final determination of the punishment part, having regard to events following conviction, must be rejected. There is nothing in part XA of the Act as amended that restricts the court's power under section 118 (4). Moreover, there is nothing in the opinion of the court in Flynn (see below) to suggest that the determination of the first stage reference level for a punishment part on appeal should be constrained in any way. Further it is not material for this purpose that leave to appeal has been granted in terms of section 107 of the Act. The only relevant criterion for the purposes of that provision is whether the documents submitted disclose arguable grounds of appeal. Leave to appeal does not imply a view that the appeal has prospects of success such that it would be contrary to the interests of justice for the court to dispose of the appeal fully on its merits, whatever the outcome. Standing section 118 (4) an appeal against sentence is not a guarantee of neutrality of result at worst for the appellant, whatever the course of events by which the appeal comes before the court.
However, in this case, the reference level was before the court in the first Stewart appeal, and the view may properly be taken that all relevant and material considerations have already been taken into account with the exception of those expressly discounted by the court as the law was understood in 2002.
In Flynn, the court reviewed its approach, following the decision of the Privy Council, and set out in paragraphs  to  the course to be followed in transitional cases where there had been dates fixed under the parole system for review of the prisoner's progress. In particular it was stated:
" 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 may subsequent reviews are unsuccessful ...  In our view, the logical starting point is ... 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 was of adjustment to the punishment part."
The first stage of the exercise does not raise a live issue in the circumstances of this case. The second stage does. The appellant's sentence was back-dated to 30 August 1993. On 1 February 2000 the Scottish Executive Justice Department, Parole and Life Sentence Review Division, informed the appellant that the first formal review of his case by the Parole Board should take place after he had served ten years in custody, that is some time after 30 August 2003.
The relevant history of the appellant in custody was set out in a report by the Preliminary Review Committee. The report disclosed that on 10 November 1997 the appellant had been considered to be a high risk prisoner who had shown a lack of progress in custody. At that stage his case was held back for further consideration in two years time. In all the appellant was reviewed on seven occasions up to 21 June 1999, and remained on a high supervision classification. On 20 December 1999, the Committee took the view that he appeared to be more settled. He had undertaken offence-related programmes. In the light of that, the Committee recommended that his case should be referred for first formal review by the Parole Board when he had served ten years in custody. On 1 March 2000 he was re-assessed as requiring medium supervision. On 1 April 2002, he was re-assessed as a low supervision prisoner and was held in Edinburgh prison. He had escorted access to the community, but not unsupervised access.
The appellant's history of misconduct was poor. He had a total of twenty-nine misconduct reports, one of which was dismissed. He was found guilty on 26 January 2005 of being in possession of a mobile telephone and two Sim cards. As a result he was down-graded and returned to medium supervision status. He was restored to low supervision status on 22 June 2005. Of the 29 reports, 7 were for possession of prohibited items; 5 for failure to work; 4 for refusing a lawful order and 3 for using threatening, abusive or insulting words or behaviour. Mr Jackson was inclined to dismiss the possession of a telephone and Sim cards as insignificant. But that is clearly inappropriate, both because the incident had immediate disciplinary consequences that demonstrated that it was a significant misdemeanour, and because of the obvious threat to prison discipline presented by unsupervised communication by telephone that such an instrument affords. It would be naïve to imagine that uses of mobile telephones in prison were limited to enquiring after the health and welfare of family members. Similarly, the high number of misdemeanours in custody can only be treated, objectively, as adverse to the appellant.
However, it has to be noted that the appellant had, meantime, completed a range of courses to address his offending behaviour, including anger management, alcohol management, drug awareness, and cognitive skills. In the mid-1990s he had co-operated with the prison authorities to a greater extent than at earlier times. That would have had a greater impact if he had not had more recent adverse reports.
The data made available to the court in Flynn in the form of the document Life Prisoners: A Report by the SPS Lifer Policy, Management and Review Group, Scottish Prison Service, February 2001, made it clear that first review was the beginning of a protracted process typically taking two or more years. Misconduct, such as characterised the appellant's history, could only affect adversely his prospects of more favourable treatment than the average.
The task confronting the court in assessing the impact of subsequent events is not easy. The selection of a first review date is not a matter for the court, and the factors material to the selection of the date do not engage the court. Similarly, the impact of adverse reports on the likely progress of an individual towards preparation for release is primarily a matter for the prison service and, in due course, the Parole Board. The court is confronted with the challenge of assessing, as objectively as possible, the likely consequences of an appellant's conduct, including misconduct, on the effectiveness of a date that might have been selected on a particular basis that has not been disclosed. In the circumstances of this case, having regard to the generally available data, and the appellant's own conduct, it is highly likely that the appellant's first review date would have been superseded by a postponement. Given that on average two years' delay occurs, and that the appellant would be likely to have been adversely affected by his own conduct, the punishment part should not be less than twelve years. Making allowance for all of the uncertainties involved, the appeal will be allowed, and the punishment part of fourteen years quashed and a period of twelve years substituted.