Scottish High Court of Justiciary Decisons

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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Christensen v. Her Majesty's Advocate [2005] ScotHC HCJA_123 (17 November 2005)
URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJA_123.html
Cite as: [2005] ScotHC HCJA_123, [2005] HCJA 123

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Christensen v. Her Majesty's Advocate [2005] ScotHC HCJA_123 (17 November 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk  Lady Cosgrove  Lord Johnston	[2005HCJA123] Appeal No: XC395/04 OPINION OF THE COURT delivered by the THE LORD JUSTICE CLERK in APPEAL AGAINST SENTENCE by PETER JOSEPH CHRISTENSEN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Jackson QC, Barr; Gillespie Macandrew

Respondent: K D Stewart, AD; Crown Agent



17 November 2005



Introduction

[1]      This case relates to the transitional provisions of the Convention Rights (Compliance) (Scotland) Act 2001 (the 2001 Act) affecting adult mandatory life prisoners who were serving their sentences on 8 October 2001, when those provisions came into force. In Flynn v HM Adv (2004 PC 1) the Judicial Committee of the Privy Council held that in the case of such prisoners the imposition of a punishment part should be neutral in its effects and that those provisions should be read as permitting the court when imposing a punishment part to take account of the prisoner's conduct to date.

[2]      In each of those cases the appellant had been formally notified of the date on which the Parole Board would review, or next review, his case (the PRC date). In each, the punishment part imposed had the effect of postponing the earliest competent review date. That postponement was prejudicial to the appellant.

[3]      In Flynn and Others v HM Adv (No 2) (2004 SCCR 702), a Full Bench reconsidered the punishment parts imposed in those cases and gave some general guidance on the approach that should be taken.

[4]      The present appeal is one of several transitional cases in which the appellant did not have a PRC date when the punishment part was imposed; but where it might have been argued that he had reasonable cause to expect a review date earlier than would now be possible in consequence of the punishment part. The question is whether conduct to date is relevant in such cases.



Submission for the appellant

[5]      Senior counsel for the appellant submitted that the underlying principle recognised in Flynn v HM Adv (supra) should apply to all adult mandatory life prisoners in transitional cases. There were indications in Flynn v HM Adv (at paras 46, 49-50 and 54) that the principle of that case was expressed quite generally and did not depend on the question whether a PRC date had been fixed. If the conduct of the prisoner to date gave him prospects of an early review, those prospects should be taken into account in the imposition of the punishment part. If the court took such conduct into account only in relation to prisoners who had been given a PRC date, there would be unfair discrimination against those prisoners who had not. Those who did not have a PRC date but would have had good prospects of an early review were, or might have been, prejudiced by the imposition of the punishment part where it would expire later than the release date that they might otherwise have been given. Before the 2001 Act, every prisoner went before a PRC after he had served four years of his sentence (Flynn v HM Adv, supra, at para 22). If his conduct had been good, the PRC fixed a first review date in all but the most exceptional cases. When the PRC fixed that date, the Scottish Ministers accepted it (para 24). That date was usually eight to ten years into the sentence. A prisoner would know this from the outset of his sentence. Therefore a prisoner of good conduct had exactly the same expectations whether or not he had been given a PRC date when the punishment part was imposed.



The position of the Crown

[6]      At the first hearing of this appeal, the advocate depute then appearing was unable to say what the Crown's position was. At the continued hearing, the advocate depute said that the Lord Advocate had considered the matter and conceded that the submission for the appellant was well-founded. In a case such as this the court should take into account all matters relevant to a parole review that had occurred to date (Flynn and Others v HM Adv (No 2), supra, Lord Hope of Craighead at paras 50-53; Lord Rodger of Earlsferry at paras 81 and 83).



Decision

[7]      In our opinion, the submission for the appellant is well-founded and the Crown is right to concede the point. We consider that in keeping with the general principle on which Flynn v HM Adv (supra) was decided, all adult mandatory life prisoners in transitional cases should be dealt with on the same footing. It would be unfair if a prisoner who had a record of good conduct but no PRC date were to be deprived by the imposition of the punishment part of the expectation of an early review. That result would be unfairly discriminatory as between those prisoners who had been given a PRC date and those who had not. We need not elaborate the point.

[8]      We shall therefore continue this, and a number of other similar cases, to enable the Scottish Prison Service to prepare reports of the kind that it has submitted in relation to prisoners in the position of those whose sentences were considered in Flynn and Others v HM Adv (No 2) (supra). These reports have been thorough and informative. They have been an essential element in our consideration of those other cases.