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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lady Paton

[2008] HCJAC 6

Appeal No: XC1012/03

OPINION OF THE LORD JUSTICE GENERAL

APPEAL

JOHN LOCKE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Act: Shead, Mason; Gillespie McAndrew, Edinburgh (Appellant)

Alt: Wolffe, Q.C., A.D.; Crown Agent

1 February 2008

Introduction

[1] On 4 August 1998 the appellant was convicted after trial in the High Court at Inverness of the rape of a fifteen year old girl (charge (2) on the indictment). He was also convicted of the theft of a handbag. He had previously been convicted of rape on two occasions: on 14 November 1983 he was sentenced to three years' imprisonment for that crime and on 25 March 1988 was sentenced to fifteen years' imprisonment for the rape of a sixteen year old girl. The crime of which he stood convicted on 4 August 1998 was committed on 2 April 1998, within three months of the appellant having been released after serving ten years of his previous term of imprisonment. On 2 April 1998 the appellant was forty-one years of age. In addition to his previous convictions for rape, he had also previously been convicted of other crimes of violence: in 1976 he had been sentenced to twelve months in a Young Offenders Institution for assault to severe injury and in 1984 to three years' imprisonment for robbery. The trial judge imposed on the appellant a cumulo sentence of life imprisonment and, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as then amended), fixed the "designated part" of the sentence at fifteen years.

[2] Several years after his conviction and sentence the appellant lodged an appeal in respect of the designated part of that sentence. The only ground of appeal was that there had been a miscarriage of justice -

"in that the designated part of 15 years is excessive having regard to the matters which the learned trial judge was required to take into account in terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993, Section 2, and the failure of the learned trial judge to take into account the early release provisions of Section 1 of the said Act in the calculation of the said designated part."

On 17 February 2004 he was granted leave to appeal on that ground.

[3] In his report to this court the trial judge states:

"I fixed the appropriate period at 15 years in light of the appellant's previous convictions especially those of 14 November 1983 and 25 March 1998 (sic). I also found it of significance that the appellant had only been released in respect of the last sentence, some 3 months before the commission of the present offence. As far as I am aware I took all the relevant statutory provisions into account."

The legislation

[4] As at August 1998 the 1993 Act (as amended by the Crime and Punishment (Scotland) Act 1997) provided:

"1(1) As soon as a short-term prisoner has served one-half of his sentence the Secretary of State shall, without prejudice to any supervised release order to which the prisoner is subject, release him unconditionally.

(2) As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him on licence.

(3) After a long-term prisoner has served one-half of his sentence the Secretary of State may, if recommended to do so by the Parole Board under this section, release him on licence.

...

2(1) In this Part of this Act 'designated life prisoner', ... except where the context otherwise requires, means a person -

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

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

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

1995 Act (imprisonment for life on further conviction for certain offences); or

by him before he attained the age of 18 years,

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

(2) The order referred to in subsection (1) above is an order that subsections (4) and (6) below shall apply to the designated life prisoner as soon as he has served such part of his sentence ('the designated part') as is specified in the order, being such part as the court considers appropriate taking into account -

(a) the seriousness of the offence, or of the offence combined with

other offences associated with it;

(b) any previous conviction of the designated life prisoner; and

and (b) of section 196(1) of the 1995 Act.

(3) Where a court which imposes life imprisonment for an offence such as is mentioned in subsection (1) above decides not to make such an order as is mentioned in subsection (2) above, it shall state its reasons for so deciding; and for the purposes of any appeal or review, any such order and any such decision shall each constitute part of a person's sentence within the meaning of the 1975 Act.

(4) Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a designated life prisoner on licence.

(5) The Parole Board shall not give a direction under subsection (4) above unless -

(a) the Secretary of State has referred the prisoner's case to the

Board; and

(b) the Board is satisfied that it is no longer necessary for the

protection of the public that the prisoner should be confined.

(6) Where this subsection applies, a discretionary life prisoner may [subject to certain exceptions] at any time require the Secretary of State to refer his case to the Parole Board.

...".

[5] On 9 March 1999 this court gave judgment in O'Neill v HM Advocate 1999 SCCR 300. It will be necessary in due course to return to that case. At this stage it is sufficient to note that the court there gave guidance to sentencers as to the approach which they should adopt in fixing the designated part of a life sentence.

[6] The 1993 Act was, with effect from 27 July 2001, further amended by the Convention Rights (Compliance)(Scotland) Act 2001. As so amended, the 1993 Act provided:

"1(1) ... as soon as a short-term prisoner ... has served one-half of his sentence the Secretary of State shall, without prejudice to any supervised release order to which the prisoner is subject, release him unconditionally.

(2) As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him on licence unless he has before that time been so released, in relation to that sentence, under any provision of this Act.

(3) After a long-term prisoner has served one-half of his sentence the Secretary of State -

(a) shall, ...

...

if recommended to do so by the Parole Board under this section, release him on licence.

2(1) In this Part of this Act 'life prisoner', except where the context otherwise requires, means a person -

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

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

(aa) sentenced to life imprisonment for murder or for any other

offence for which that sentence is the sentence fixed by law; or

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

1995 Act (imprisonment for life on further conviction for certain offences),

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

(2) The order referred to in subsection (1) above is an order that subsections (4) and (6) below shall apply to the life prisoner as soon as he has served such part of his sentence ('the punishment part') as is specified in the order, being such part as the court considers appropriate to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public), taking into account -

(a) the seriousness of the offence, or of the offence combined with

other offences of which the life prisoner is convicted on the same indictment as that offence;

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

subsection (1) above applies -

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

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

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

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

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

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

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

(b) of section 196(1) of the 1995 Act."

Subsections (3), (4), (5) and (6) were, with certain modifications, in the same terms as in the Act as amended by the 1997 Act. Subsequent amendments, including provisions in respect of orders for lifelong restriction, have been made but are irrelevant for present purposes.

[7] Section 4 of the 2001 Act provided that Parts 1 to 5 of the schedule to that Act should have effect for the purpose of making transitional provision in connection with sections 1 to 3. Part 1 of the schedule, in so far as material, provided:

"2 In this Part of this schedule-

'life prisoner' has the same meaning as it has in section 27(1) as read with section 6 of the 1993 Act [a person serving a sentence of imprisonment for life, including young offenders and children detained without limit of time].

'punishment part' has the same meaning as it has in section 2(2) of the 1993 Act".

Part 2 of the schedule provided:

"27 This Part of this schedule applies to a life prisoner (an 'existing designated life prisoner') -

(a) who was sentenced before the relevant date; and

(b) in respect of whom the court made an order under section 2(2)

of the 1993 Act that subsections (4) to (6) of that section apply to the prisoner as soon as the prisoner has served the part of the sentence ('the designated part') specified in the order.

28 In this Part of this schedule -

'life prisoner' and 'punishment part' have respectively the same meaning as they have in part 1 of this schedule;

'relevant date' means the date [8 October 2001] when this part of this schedule comes into force; and the references in paragraph 27(b) above and paragraph 30(a) and (b) below to sections 2 and 17 of the 1993 Act are references to those sections as they had effect immediately before the relevant date.

29 Part 1 of the 1993 Act, as amended by this Act, shall, on the relevant date, apply to an existing designated life prisoner as if the designated part of the prisoner's sentence were a punishment part specified under section 2(2) of the 1993 Act as amended by this Act.

30 In the case of an existing designated life prisoner -

(a) whose case was, before the relevant date, referred to the Parole

Board under sections 2 or 17(3) of the 1993 Act and, in respect of whom, the Board declined to direct the prisoner's release on licence; or

(b) who was, before the relevant date, recalled to prison under

section 17(1) of the 1993 Act and not thereafter released,

the Board shall, as soon as reasonably practicable after the relevant date, fix the date when it will next consider the prisoner's case, being a date not later than two years after the date of its decision to decline to direct the release of the prisoner or the date when the prisoner was recalled to prison, whichever is the later; and the date so fixed shall be treated as fixed under section 2(5A)(b) of the 1993 Act."

Further developments

[8] On 2 May 2003 a bench of five judges of this court gave judgment in Ansari v HM Advocate 2003 SCCR 347. The court by a majority fixed the "punishment part" of that appellant's discretionary life sentence at nine years. The approaches adopted by the majority and the minority respectively to the task of fixing that part were different.

[9] In March 2004 this appellant submitted proposed amended grounds of appeal. On 30 March 2004 the court allowed these grounds to be received. Among them was a challenge to the correctness of the approach adopted by the majority of the court in Ansari. After sundry further procedure the court on 16 May 2007 appointed the appeal -

"to a full hearing before 3 judges to consider the question of the soundness of the decision in Ansari v HMA 2003 SCCR 347 prior to a decision being made as to whether it will be necessary thereafter to remit to a bench of 7 judges ... "

That hearing took place before the presently constituted court on 18 and 19 December 2007.

Submissions for the appellant

[10] Mr. Shead for the appellant observed that at the time of sentencing of the appellant O'Neill had not yet been decided. Robertson v HM Advocate 1997 SCCR 534 had been decided, though it was not clear from the judge's report whether in sentencing the appellant he had placed reliance on what had been said there. Mr. Shead submitted that, although the sentencing judge had not had the benefit of O'Neill, he should have sentenced the appellant on the approach subsequently adopted in that case, which turned upon a construction of the 1993 Act as amended by the 1997 Act but before amendment by the 2001 Act. If O'Neill were to be applied, the designated part of 15 years was clearly excessive - it assumed a determinate sentence of 30 years, which, despite the circumstances of the present offence and the appellant's record, was unsustainable. The designated part specified should be quashed and a lesser period fixed. It was unclear whether that period should, in the appellant's case, now be fixed having regard to the statutory regime in force prior to the coming into force of the 2001 Act (that regime being interpreted in accordance with O'Neill) or having regard to the statutory regime now in force. If the former was correct, it was unnecessary in the appellant's case to enter upon the question whether Ansari had been correctly decided. The regime which was applicable turned upon the transitional provisions made by section 4 of and the schedule to the 2001 Act - in particular, paragraph 29 of that schedule. If the post-2001 regime was applicable and the effect of Ansari was to produce a result less favourable to the appellant than he would have had under the pre-2001 regime, a question would arise as to whether that was consistent with the intention of Parliament. Article 7 of the European Convention might be engaged. Reference was made to Flynn v HM Advocate 2004 SC (PC) 1. It was clear that Parliament had intended to include the principles enunciated in O'Neill into the statutory regime; there might be a question as to whether it had succeeded in doing so. As to the construction of section 2(2) of the 1993 Act (as further amended by the 2001 Act), the reference in subsection (2)(aa)(iii) to the proportion which the prisoner sentenced to it "would or might serve before being released" was a reference to the incidents of terms served as short-term or long-term prisoners respectively (section 1). The second alternative ("might") signified the range of between one-half and two-thirds which a long-term prisoner might serve, not the possibility that he might serve two-thirds. The circumstance that the court was enjoined when specifying the punishment part to make the order "taking into account" the listed factors, including (aa)(iii), meant that the requirement was not mandatory. However, it was not an unfettered discretion. The scheme was essentially simple. The majority in Ansari had approached the issue in an over-sophisticated way. It had misunderstood the role of the Parole Board. The Board's function (in terms of the statute, the Parole Board (Scotland) Rules 2001 and the Board's own statements) was to look only at the matter of risk. The nature of the offence committed was a relevant consideration in the assessment of risk; but the Board had no concern with the punitive element in any sentence. In practice the Board met very shortly after the expiry of a prisoner's punishment part to assess the risk which his release would present to the public. The appellant, who already had a designated part specified (subject to appeal), was in a stronger position than the appellants in Flynn to argue that the amendments made by the 2001 Act should not operate to his detriment. If the majority view in Ansari was applicable to him and was correct, the new rules did operate to his detriment. The new rules should be construed as neutral in their effect. Reference was made to the saving provision (paragraph 13) in the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (1999 SI 1379). The questions addressed in Ansari were of importance, although involving only a relatively small number of prisoners. There was sufficient reason for concern about the soundness of the approach adopted by the majority to justify the case being reviewed by a larger court.

Submissions for the Crown

[11] The Advocate depute submitted that any reference of Ansari to a larger court would be an academic exercise unless it was apparent that the present appellant had suffered a miscarriage of justice. There had been no miscarriage. Regard should be had, first, to the circumstances of this offender and his history. The circumstances giving rise to his second rape conviction, which had resulted in a sentence of 15 years imprisonment, must have been atrocious to attract such a sentence. He had served 10 years of that sentence (one-third having been remitted) and within a few months of release had committed the present rape. It was unsurprising that the sentencing judge had not gone through an O'Neill-style exercise; O'Neill had not been decided at the time of sentencing and the then guidance was in Robertson. Secondly, section 2(2) of the 1993 Act (as enacted) had required the court to take into account only two factors - (a) the seriousness of the offence or of the offence combined with other offences associated with it and (b) any previous conviction of the life prisoner. The amendment made by the 1997 Act had simply added a factor (a guilty plea), which was irrelevant in the appellant's case. The approach to sentencing adopted by the appeal court in Clark v HM Advocate 1997 SCCR 416 (decided on 25 April 1997) had, on the basis of the then current legislation, been correct. The disapproval of Clark in Ansari had proceeded upon a concession - see paras [27] and [30]. Robertson had been mentioned in O'Neill at page 306D-E but only to disapprove observations that in certain circumstances it might be inappropriate to specify any designated period. No reference was made in O'Neill to the observations in Robertson at page 541D-G that it was the practice of the court in imposing sentence not to take into account matters such as parole. Thirdly, the comparative exercise which the court in O'Neill had suggested should be undertaken was not a true comparison - unless the determinate sentence with which one was making the comparison was one which was exclusively for punitive purposes. In the real world such a sentence was comparatively rare - particularly if one were postulating a determinate sentence in circumstances where the sentencer would, if it were available, have been minded to impose a discretionary life sentence. The difficulty which the court's approach would occasion had been pointed out by the Advocate depute (pages 307G-308B). In any event the O'Neill approach was not a mechanical exercise (page 308E). The possibility of settling upon a proportion higher than one-half had been recognised - see also Dudley v HM Advocate (3 November 2004, Appeal Court, High Court of Justiciary). Parliament had not said that prisoners were to be released after they had served a proportion of the punitive part of their sentence but after they had served the requisite proportion of the whole of their sentence, whatever the components. Fourthly, it was not appropriate to review sentences which had been imposed in accordance with sentencing practice current at the time of sentencing, even although later developments may have led to a change in practice. Reference was made to R v Royal [2003] EWCA Crim. 1152 at para. 13 and R v Sim [2003] EWCA Crim. 1609 at paras. 16 and 27-8. It was acknowledged, however, that a number of sentences passed before O'Neill had subsequently been varied in light of it (for example, Lumsden v HM Advocate (16 March 1999, Appeal Court, High Court of Justiciary); Notman v HM Advocate (15 February 2002, Appeal Court, High Court of Justiciary)). As to the 2001 Act, the 1999 Order referred to by Mr. Shead was a reflection of sections 16 and 23A of the Interpretation Act 1978 (as amended). Para. 29 of the schedule to the 2001 Act provided that Part I of the 1993 Act (as amended by the 2001 Act) was to apply to a person such as the appellant as if the designated part of his sentence were a punishment part specified under section 2(2) (as amended). It was a matter of interpretation whether the effect was simply to treat Part I as so applicable or was to convert the designated part into a punishment part. Reference was made to Attorney General v Vernazza [1960] AC 965, especially per Lord Denning at page 978 and to Radenkovic v The Queen [1990] 170 CLR 623, per Mason CJ and McHugh J at page 632. If it were the case that the statute was intended to put the principles in O'Neill into statutory form, it would be appropriate to construe para. 29 in that light and treat the designated part in all contexts as if it were a punishment part. It was plain as a matter of construction of the 1993 Act (as amended) that the introductory words of section 2(2) required the court to take into account a number of matters, including that set out in para. (aa)(iii). That paragraph, whatever its meaning, was not conclusive of what period should be fixed as the punishment part of a discretionary life sentence. The paragraph itself was not prescriptive but merely alerted the sentencer that he should have in mind that a prisoner sentenced in like circumstances to a determinate sentence would or might be released at some point during his sentence. The reference to "might" indicated the range (between one-half and two-thirds); it was not a reference to a long term prisoner's eligibility for release (half-way through his sentence). It was also legitimate for the sentencer, when considering para. (aa)(iii), to have regard to the whole circumstances before him, including the gravity of the offence - though it was not suggested that a sentencer should "second guess" what the Parole Board might do. The primary function of the Parole Board in relation to life prisoners was to decide whether it was satisfied that it was no longer necessary for the protection of the public that the prisoner should be confined (section 2(5)(b) of the 1993 Act). In relation to long-term prisoners the Board had to decide, after the prisoner had served one-half of his sentence, whether to recommend that he be released on licence (section 1(3)); no statutory criterion was identified. The discretion was unfettered (Howden v Parole Board for Scotland, 8 April 1992, Lord MacLean, unreported, followed in McRae v Parole Board for Scotland 1997 SLT 97 at page 100). The overarching criterion in specifying a designated part/punishment part was retribution and deterrence. The court having that in mind might fix the part at more than one-half of the equivalent determinate sentence. In Ansari both the majority and the minority had envisaged the proportion being up to and even beyond two-thirds. The ratio of the majority decision in Ansari did not depend upon its view as to what approach should be adopted by the Parole Board. It was simply that sentencers required to have regard to the early release provisions for determinate prisoners (Lord McCluskey at para. [3], Lord Justice Clerk at paras. [41]-[42]). Leave to appeal had been granted five years after the present appellant had been sentenced. It was noteworthy that in England and Wales it had been held that, without special or particular reasons, leave to appeal out of time on change of law grounds should not be granted (R v Cottrell [2007] EWCA Crim 2016, especially at paras. 42-6).

Response for the appellant

[12] Mr. Shead in reply submitted that the court should not follow the approach adopted in Cottrell. It was inconsistent with Scottish practice. It involved complicated and difficult issues with a tension between the principles of finality and of doing justice in individual cases. Here the appellant had been granted leave. As to Ansari, the ratio of that case could not be discovered without having regard to the reasons which the judges in the majority had given for their decision.

Discussion

[13] In Robertson v HM Advocate the appellant pled guilty to abducting, tying up and gagging a seven year old girl with intent to commit a sexual assault on her and with abandoning her, all to the danger of her life. He had two previous convictions for similar assaults. The sentencing judge on 10 March 1997 imposed a sentence of life imprisonment and, under reference to section 2(2) of the 1993 Act, specified eight years as the minimum period which the appellant should serve before subsections (4) and (6) of that section applied, that is, before the appellant was entitled to require the Secretary of State to refer his case to the Parole Board and the Secretary of State was obliged to release him if so directed by the Board. The appellant appealed against the imposition of the life sentence. He also contended that the sentencing judge should not in the circumstances have specified any minimum period and, in any event, that the period specified was excessive. All of his contentions were rejected by an appeal court presided over by Lord Sutherland. The last of these contentions included a submission that -

"to recommend that a minimum of eight years should elapse before he is considered for release was the equivalent of at least a twelve year sentence, allowing for remission, and that this would be excessive for the offence with which we are concerned".

In delivering the Opinion of the Court on 12 June 1997 Lord Sutherland, referring to that last ground, said at page 541E-F:

"In our view it is not appropriate to start converting the period which is recommended into some other possible sentence which may vary depending upon what Parliament decides to do from time to time in relation to matters of remission. When imposing sentence, it has been the practice of the court to impose the sentence which the court thinks is appropriate and not to take into account possibilities of remission, parole or anything of that nature. These are administrative matters for the executives (sic) to decide and not for the court to decide. Accordingly, we consider that what we have to look at is the period of eight years and not some notional higher figure."

[14] Although the submission (as recorded) was by reference to "remission" and so was couched in language more apt to the regime in place before the 1993 Act came into force (on 1 October 1993), it is plain that the court, as a matter of sentencing practice, rejected any comparative exercise between what was then the "relevant part" of a discretionary life sentence and a notional determinate sentence. The then practice of fixing a "relevant part" without carrying out a comparative exercise with determinate sentences is also exemplified in Clark v HM Advocate 1997 SCCR 416 (decided on 25 April 1997) where the court, while quashing an order which had taken into account the risk posed by the appellant to the public, simply fixed the appropriate period at nine years, bearing in mind that the period specified was a period which the appellant would require to serve in custody. I shall return, in due course, to consider the standing of that decision in the light of a reference to it in Ansari.

[15] Section 16 of the Crime and Punishment (Scotland) Act 1997 came into force on 20 October 1997. It made certain substantive amendments to section 2 of the 1993 Act (none of which is directly relevant for present purposes) and re-named the "relevant part" as the "designated part". No legislative changes were made which affected the sentencing practice referred to in Robertson. The same approach was adopted by the court in Anderson v HM Advocate 1998 SCCR 196 (decided on 28 January 1998). It was against that background that the sentencing judge in the present case on 4 August 1998 specified the designated part of the appellant's sentence at fifteen years.

[16] On 9 March 1999 this court gave judgment in O'Neill v HM Advocate. The appellant had been sentenced to life imprisonment with a designated part of seven years. The sentencing judge had specified that period, taking into account, among other things, the general need to protect the public. An appeal against the imposition of the life sentence was rejected but it was held that the trial judge had erred in taking the view that the designated part should take into account the general need to protect the public. The court (which included Lord Sutherland) then addressed the matter of the designated part. It is plain that its own researches had discovered English authority which it regarded as relevant (page 304E). Having derived assistance from R v Marklew and Lambert [1999] 1 Cr. App. R. (S.) 6 the court said, at page 307C-F:

"Since the purpose of the order under section 2(2) is to determine the punitive period which the prisoner must serve before he can require the Secretary of State to refer his case to the Parole Board, the period selected must be the minimum period which the prisoner should actually serve in prison as a punishment for his crime before he could be released. That is different from the period to which a judge might actually sentence him for that crime, for two reasons: first the judge would, normally at least, simply decide what sentence was appropriate as a punishment and would not consider at what point in the sentence the prisoner might actually be released; secondly, the judge would take all relevant factors into account and would not isolate those specified in section 2(2)(a) and (b). It follows that the exercise of determining a designated part in terms of section 2(2) is distinct from the exercise of determining the appropriate determinate sentence for a similar crime. On the other hand, the designated part must bear some relationship to such a determinate sentence since, leaving aside the exceptional case where imprisonment for life would be the appropriate punishment, comparative justice requires that the designated period should bear a fair and reasonable relationship to the minimum period which a prisoner would actually require to serve under a determinate sentence imposed in similar circumstances, but lacking the special requirement of public protection which has led to the life sentence. That minimum period is in effect set by Parliament in terms of the 1993 Act. Under section 1(3) a prisoner serving a sentence of four years or more is entitled to be released on licence after serving two-thirds of his sentence and may be released on licence after serving one-half of his sentence, if the Parole Board recommends that he should be released. These provisions show that Parliament currently takes the view that the minimum period which a long-term prisoner should serve as a punishment before he can be released on licence is one half of his sentence. In our view therefore, in deciding what period to specify as the designated part after which a prisoner is entitled to have the Parole Board consider whether he should be released, the court must have regard to the actual minimum period which the prisoner would have required to serve before he could be released if a determinate sentence had been imposed for the crime."

[17] Three observations may be made immediately about this passage. First, the English legislation against which R v Marklew and Lambert was decided (section 34 of the Criminal Justice Act 1991) makes an explicit cross-reference to the provisions in relation to long-term determinate prisoners requiring the sentencer to take into account the comparison (see sections 34(2)(b) and 33(2)). As at 1999 no such explicit comparative exercise was called for in the Scottish legislation. However, the court thought it right, as a matter of comparative justice, that the position in relation to the release of persons sentenced to long-term determinate terms should, in fixing the designated part of life sentences, be brought into account. Secondly, although both Robertson and Clark were clearly before the court, no adverse comment was made on either of these cases in so far as they reflected a practice of specifying a relevant (or designated) part without a comparative exercise with long-term prisoners. Thirdly, although the court prayed in aid section 1(3) of the 1993 Act in deciding upon its approach towards fixing a designated part under section 2(2), it did not do so for the purposes of interpreting any words in the statute. Rather, it used section 1(3) as a touchstone against which the justice of a designated part might be tested. In these circumstances O'Neill is, in my view, properly to be seen as laying down a practice in relation to sentencing under section 2(2) (as then amended), a practice which was importantly different from that which had been used previously.

[18] If that analysis is correct, it raises an important issue in relation to the disposal of the present appeal. In England and Wales it is clear that sentencing decisions of the Court of Appeal, whether by way of guidelines or otherwise, are not intended to have, and do not have, retrospective effect (Graham [1999] 2 Cr. App. R. (S.) 312; R v Royal; R v Sim). Such decisions fall to be distinguished from those which involve the interpretation of a statute. We were not referred to any discussion of this matter in Scotland. We were told that a number of relevant or designated parts imposed pre-O'Neill had subsequently been varied in light of that decision though, so far as I am aware, no point was there taken that the sentence should be determined in light of the practice at the time of sentencing. It is also the case that mandatory life sentences taking effect from the date of sentencing, rather than from the date of remand, have been varied in light of Elliott v HM Advocate 1997 SCCR 111 - though these appear to turn not on practice but on an interpretation and application of section 218(1) of the Criminal Procedure (Scotland) Act 1975 (now section 210(1) of the Criminal Procedure (Scotland) Act 1995).

[19] The principle established in England appears to me to be sound and should be adopted in this jurisdiction. The sentencing practice of the court at any time reflects the prevailing circumstances, including any statutory maxima and the court's current approach to sentencing generally and to sentencing in relation to particular offences. These circumstances may and do change over time. It is appropriate that a sentence reflects the practice sanctioned by the Appeal Court as at the original date of sentencing. It is inappropriate that it be varied simply because the court has subsequently adopted a different practice. In these circumstances the appropriate sentence in the appellant's case is, in my view, unaffected by O'Neill.

[20] Nor is it affected by the passing of the 2001 Act nor by the decision in Ansari. Paragraph 29 of the Schedule to the 2001 Act provides that Part 1 of the 1993 Act, as amended by the 2001 Act, shall on 27 July 2001 apply to an existing designated life prisoner (such as the appellant) as if the designated part of his sentence were a punishment part specified under section 2(2) of the 1993 Act as amended by the 2001 Act. An effect of that provision is that, for the purposes of arrangements for the appellant's ultimate release, his designated part falls to be treated as a punishment part of the same length. It has no effect, in my view, on the validity of the sentencing practice in the context of which that part was specified. And, even if Ansari falls to be treated as a decision on the interpretation of the 1993 Act (as amended by the 2001 Act) rather than as guidance on sentencing practice taking into account the provisions of that Act (an issue upon which I reserve my opinion), the application of the amended Act to a person sentenced before the amendment proceeded upon a concession, which was not made in this appeal. This court is accordingly free to decide whether the application of the amended legislation to persons originally sentenced prior to its coming into effect was correct. In my view such application was incorrect. In these circumstances the appropriate sentence in the appellant's case should be determined in accordance with the approved sentencing practice prevailing at the time when he was originally sentenced.

[21] In these circumstances it is unnecessary, in my view, to decide many of the interesting issues which were debated before us. But I offer some observations upon some of them.

[22] In O'Neill at page 307 the court distinguished between the minimum period which the prisoner should actually serve in prison as a punishment for his crime before he could be released and the period to which a judge might actually sentence him for that crime. It then expressed its view as to what was required by way of comparative justice. Having noted a difficulty in the comparative exercise as pointed out by the Advocate depute, it observed at page 308D:

"Therefore, when specifying the appropriate period in terms of subsection (2), in the normal case the court should decide what period of detention would be appropriate, purely as a punishment for the crime, and should then designate half that period."

At page 308E-F it added:

"In applying that approach to the present case, we consider that, having regard to the appellant's previous convictions, the appropriate determinate sentence leaving out of account the element of protection of the public, would have been six years and that the minimum period which he would therefore have required to serve as a punishment for the crime before he could be released on licence would have been three years."

[23] The court gave no guidance as to how the sentencer would go about the initial exercise of identifying a comparative determinate sentence. In Ansari this first step is described as being "relatively straightforward" (per the Lord Justice Clerk, at para. [35]). But I doubt whether it is. What the sentencer has to do is to postulate a "notional determinate sentence" in circumstances where the risk to the public is so grave that a life sentence is in contemplation. There will be little, if any, comparative material to draw on because in such circumstances determinate sentences will in fact be rare. On any view the "notional determinate sentence" is likely to be substantially longer than determinate sentences actually imposed for like crimes where there is no substantial risk element. Further, the initial step postulated in O'Neill appears (in contrast with that in Ansari) to involve taking a notional sentence stripped of any "risk" element ("purely as punishment for the crime"). But it is difficult to see why comparative justice with long-term prisoners should require half of that notional sentence to be designated; the latter class of prisoner become eligible for consideration for release only when they have served half of the sentence actually imposed - which will commonly include a "risk" element.

[24] Moreover, O'Neill was decided before mandatory adult life prisoners were (by the 2001 Act) brought into the same regime as discretionary life prisoners, although those convicted of a murder committed before attaining the age of eighteen had been included by the 1997 Act. Notwithstanding what may appear to be a somewhat different approach adopted in Murray v HM Advocate 1999 SCCR 946 (again decided before the 2001 Act), comparative justice requires, in my view, some consideration to be given as to how what are now styled "punishment parts" for discretionary life prisoners relate to punishment parts imposed under the same statutory provision (section 2(2) of the 1993 Act as amended by the 2001 Act) for mandatory life prisoners. The punishment part for a person convicted of culpable homicide in circumstances which are only marginally short of being murderous should not be wholly disproportionate to the punishment part fixed for a person convicted in similar circumstances of murder.

[25] In the circumstances it is, in my view, unnecessary for the purposes of this case to enter upon an interpretation of the 1993 Act (as amended by the 2001 Act) or to express a view as to whether there is a case for reviewing the decision of this court in Ansari. I add only that the view in Ansari that the decision in Clark v HM Advocate was erroneous, proceeded on a concession (see per the Lord Justice Clerk, at para. [27]), a concession which, in my view, ought not to have been made.

Disposal

[26] In the whole circumstances I move your Lordships to decline to remit the case to a bench of seven judges, but rather to appoint it to be heard before this bench to consider whether, in accordance with sentencing practice prevailing as at August 1998, the designated part of the appellant's sentence was excessive.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Macfadyen

Lady Paton

[2008] HCJAC 6

Appeal No: XC1012/03

OPINION OF LORD MACFADYEN

APPEAL

JOHN LOCKE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent.

Act: Shead et Mason; Gillespie Macandrew (Appellant)

Alt: Wolffe Q.C., A.D.; Crown Agent (Respondent)

1 February 2008

[27] I agree with your Lordship in the chair that we should decline to remit the appeal to a bench of seven judges, and should instead appoint a further hearing to consider whether, applying the sentencing practice prevailing at the time the appellant's sentence was imposed, the designated part of that sentence was excessive.

[28] On 16 May 2007 the court appointed the appeal to a hearing to determine whether it should be remitted to a bench of seven judges with a view to reviewing the soundness of the decision of a bench of five judges in Ansari v H. M. Advocate 2003 JC 105. In the course of the hearing before us very little was said about the criteria to be applied in determining whether a remit should be made to an enlarged court for the purpose of reviewing the soundness of a binding authority. It is, however, in my view clear that the court should not ordinarily make such a remit unless the point settled by the binding authority would, or at least might, be determinative of the appeal then before the court. It would therefore not be appropriate to remit this appeal to a bench of seven judges to review the soundness of Ansari unless the ratio of Ansari is applicable to, and at least potentially determinative of, an issue which arises in the present appeal.

[29] The appellant in Ansari was sentenced on 15 October 1996. The sentencing judge imposed a sentence of life imprisonment, and made an order under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act") specifying that the relevant part of the sentence should be twelve years. On appeal (Clark v H. M. Advocate 1997 SCCR 416) the relevant part was reduced to nine years. By the time the reference by the Scottish Criminal Cases Review Commission came before the court in November 2002, the 1993 Act had been amended by the Crime and Punishment (Scotland) Act 1997 ("the 1997 Act") and again by the Convention Rights (Compliance) (Scotland) Act 2001 ("the 2001 Act"). At the hearing on the reference, it was a matter of concession that the matter should be decided by reference to the amended legislation as it stood at the date of the hearing (Ansari, 113H, paragraph 27; 114, paragraph 31). As a result, the court in Ansari was, in my view, concerned with the interpretation or application of the 1993 Act as amended by the 1997 and 2001 Acts. The decision turned, in particular, on the interpretation or application of section 2 as amended by the 2001 Act.

[30] The present appellant was sentenced on 4 August 1998. In sentencing him to life imprisonment and making an order under section 2(2) of the 1993 Act as amended by the 1997 Act, the sentencing judge accordingly fixed a 'designated part" of 15 years. The basic issue in this appeal is whether that designated part was excessive. In this case, however, it is not conceded that the matter falls to be decided by reference to the amended legislation as it now stands, i.e. as further amended by the 2001 Act. If this appeal fell to be decided by reference to the legislation as it now stands, the ratio of Ansari, at least so far as construction of the legislation is concerned, would be binding on this court, and would potentially be determinative of the appeal. In that situation, it would be for the appellant to satisfy us that it is appropriate that the soundness of Ansari be reviewed. If, on the other hand, the appeal falls to be decided by reference to the legislation as it stood before amendment by the 2001 Act, Ansari is not relevant to this appeal, and this is therefore not an appropriate case in which to remit to an enlarged bench to review the soundness of Ansari.

[31] Because it was a matter of concession, there is no detailed account in Ansari of the reasons for proceeding on the basis that in that case the court had to fix a punishment part by reference to the legislation as it stood at the time of the hearing. Lord Justice Clerk Gill (at paragraph 31) merely referred to paragraph 29 of part 2 of the Schedule to the 2001 Act. Your Lordship in the chair has already quoted more extensively from the Schedule to the 2001 Act, and it is therefore sufficient for me to note that paragraph 29 provides:

"Part 1 of the 1993 Act, as amended by this Act, shall, on the relevant date [8 October 2001] apply to an existing designated life prisoner as if the designated part of the prisoner's sentence were a punishment part specified under section 2(2) of the 1993 Act as amended by this Act."

It is unnecessary for present purposes to discuss exhaustively what the effect of that provision is, beyond saying that the broad purpose appears to have been to secure that the effect and consequences of an existing designated part were equiparated with those of a punishment part under the 2001 Act. It is, however, in my view, clear that it does not have the effect that an existing designated life prisoner, who has been granted leave to appeal late against his sentence, and whose appeal comes before the court after 8 October 2001, must or may have the designated part of his sentence reassessed as a punishment part in accordance with the detailed provisions of section 2(2) of the 1993 Act as amended by the 2001 Act.

[32] It follows, in my opinion, that, since this appeal does not turn on section 2(2) of the 1993 Act as amended by the 2001 Act, Ansari is not in point. This, therefore, is not a case in which it is appropriate to remit to an enlarged court to review the soundness of Ansari.

[33] Section 2(2), as it stood at the time when the appellant was sentenced, required the sentencing judge to make an order specifying the designated part of the sentence (or to state his reasons for deciding not to do so). The designated part was to be:

	"such part as the court considers appropriate taking into account ―
	(a)	the seriousness of the offence, or of the offence combined with other offences associated with it;
	(b)	any previous conviction of the designated life prisoner; and
	(c)	where appropriate, the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act".

That provision conferred on the sentencing judge a discretion to determine the designated part of the sentence provided the considerations mentioned in the subsection were taken into account (and the considerations impliedly excluded were left out of account: Clark v H. M. Advocate).

[34] It is, in my view, clear that O'Neill v H. M. Advocate 1999 SCCR 300 represented a change in sentencing practice in relation to the selection of the designated part of discretionary life sentences. It introduced the view that regard should be had to the early release provisions applicable to determinate sentences. That had not been done in earlier cases such as Robertson v H. M. Advocate 1997 SCCR 534. In the context, however, of the discretion conferred on the court to set the designated part which it considered appropriate (confined only by the need to take into account the matters mentioned in paragraphs (a), (b) and (c), and to leave out of account the matter of risk to the public), the change did not, it seems to me, involve or depend upon any matter of construction of section 2(2).

[35] That being the case, I agree with your Lordship in the chair that we should adopt the approach followed in England and exemplified in Graham [1999] 2 Cr App R (S) 312, R. v Royal [2003] EWCA Crim 1152 and R. v Sim [2003] EWCA Crim 1609. The appeal should therefore be appointed to a further hearing at which the merits of the appeal will fall to be considered in light of sentencing practice as it was at the time of the original sentence.