Appellant: Shead, Advocate & Mackenzie, Advocate; Gillespie McAndrew

Respondent: G Mitchell Q.C., A.D.; Crown Agent

18 May 2011

The background circumstances

[1] On 24 May 2007 at the High Court in Edinburgh the appellant was found guilty after trial of two charges of rape. The charges were in the following terms:-

"(11) on various occasions between 17 September 1990 and 4 June 1992, both dates inclusive, the precise dates being to the Prosecutor unknown, at [two specified addresses], all Edinburgh you CAROLINE DUNSMORE and MORRIS PETCH did while acting with William King, now deceased, assault D M F, born 5 June 1980, ...then aged 10 to 11 years and did induce her to lick and suck the private members of said Morris Petch and William King, and did repeatedly rape her;

(12) on an occasion between 17 September 1990 and 3 November 1991, both dates inclusive, the precise date being to the Prosecutor unknown, at [a specified address], Edinburgh you MORRIS PETCH did assault D M F, born 5 June 1980, ...then aged 10 years, and H E F, born 17 October 1981, ... then aged between 8 and 9 years and did induce them to take off their clothes, lie on the sofa bed there and then you did induce each girl to lick the private parts of the others and you did rape them;"

[2] On 10 August 2007, the trial judge sentenced the appellant to life imprisonment. In terms of section 2(2) of the Prisoners & Criminal Proceedings (Scotland) Act 1993, "the 1993 Act", he ordered that a period of 12 years be served by the appellant before the provisions of sections 2(4) and 2(6) of that Act should apply. On 4 September 2007, the appellant lodged a note of appeal against that sentence. That note of appeal was in the following terms:

"It is accepted from the outset that a lengthy custodial sentence was appropriate given the nature of the offences that the appellant was found guilty of and his schedule of previous convictions.

It is however submitted that in the present case the imposition of a discretionary life sentence was excessive, particularly when viewed against the appellant's age and the sentences imposed on his co-accused. Enjoying this comparison, it is of course accepted that the sentence imposed on the co-accused who pled guilty will have been discounted to reflect the utility to the criminal justice system of the timing of their plea".

[3] Since the procedure followed in this appeal has been unusual, it is appropriate to outline it. On 24 April 2009, the appeal came before a two-judge sentence appeal court when the court remitted the appeal to a bench of three judges "to be heard along with the appeal of Robert Foye (XC640/08) in order to revisit the issue of the formula for determining a punishment part of a discretionary life sentence". On 18 December 2009 the appeal came before a court constituted by three judges. The court, having heard counsel for the appellant and the Advocate depute, was satisfied that the submissions that had been made raised important issues in relation to the five-judge decision in Ansari v Her Majesty's Advocate 2003 S.C.C.R. 347. It appointed the appeal to be heard by a bench of seven judges. On 28 and 29 September and 21 and 22 October 2010, such a court heard this appeal, along with that of Robert Foye. On 1 March 2011, that court, for the reasons given in its majority opinion, overruled the decision of the majority of the court in Ansari v Her Majesty's Advocate. It decided, with Lord Osborne and Lord Emslie dissenting, that the approach of Lord Reed in that case to the interpretation of the provisions of section 2(2) of the 1993 Act, as amended, should be adopted by sentencing judges. The court held that the exercise set forth in section 2(2)(aa) was, taken as a whole, so redolent of the exercise envisaged by the court in O'Neill v Her Majesty's Advocate 1999 S.S.C.R. 300 that it was inconceivable that Parliament intended to do anything other than to give statutory effect to what the court had there envisaged. In any event, if the construction, which as a matter of language, was not clear, the legislation could readily be described as ambiguous or obscure, and resort could legitimately be had to Parliamentary material, which made plain that that was the provision's intention; that with regard to section 2(2)(aa)(iii), the prisoners who would or might be released pursuant to section 1 of the Act, being short-term and long-term prisoners respectively, would be or might be so released after serving one-half of their sentences, therefore the notional determinate sentences designated under that provision ought to be halved; and that the principled approach of Lord Reed in his dissenting opinion in Ansari v Her Majesty's Advocate ought to be adopted by sentencers. The court then remitted the appeal to a court of three judges for final disposal. It was in these circumstances that the appeal came before us on 14 April 2011.

The submissions of the appellant
[4] Counsel for the appellant commenced by pointing out that the offences in the present case had been committed between 17 September 1990 and 4 June 1992. In consequence, it had not been open to the sentencing judge to select an extended sentence under section 210A of the Criminal Procedure (Scotland) Act 1995, since that provision was not retrospective in effect and had come into force after those dates. Thus the only alternative to a discretionary life sentence available to the sentencing judge would have been the selection of a lengthy determinate sentence of imprisonment. It was submitted that that was the course which ought to have been taken and that the discretionary life sentence selected was excessive. Counsel accepted that there had been reports before the sentencing judge relating to the risk to the public presented by the appellant. In particular, there was a social enquiry report, dated 22 June 2007, which dealt with the matter of risk. The writer of that report noted that the appellant, despite his conviction, continued to deny his guilt, suggesting that it had probably been his father who had committed the offences. The author of the report had used the risk matrix RM 2000 structured risk assessment tool and had concluded that the appellant was at a high risk of re-conviction. This report went on to evaluate the risk presented by the appellant further in the light of known circumstances. It was noted that the appellant had a record of previous convictions, which included a conviction, dated 6 January 1986, in the High Court at Dunfermline, of assault with intent to ravish. The conclusion of the author was that the appellant's current risk of harm to children would be assessed as high, or very high.

[5] The sentencing judge also had available to him a report from Dr Gary Macpherson, Consultant Forensic Clinical Psychologist, dated 6 August 2007. He noted that what was described as the base rate of re-conviction for sexual offences in Scotland for offenders with a previous history of sexual offending was 35% within 10 years. That was an average rate of re-conviction. He went on to conclude that the risk of the appellant committing an analogous sexual offence within the next 10 years was significantly higher than the average rate of sexual offence recidivism in Scotland. It was this material that the sentencing judge had taken into account in reaching his conclusion, expressed in paragraph [7] of his report to this court, that he should impose a discretionary sentence of life imprisonment. In support of the first part of the appellant's ground of appeal, the question for the court was whether the risk presented by the appellant could be contained in any manner other than by the imposition of such a sentence. It was submitted that a lengthy determinate sentence would have been appropriate in the circumstances.

[6] Recognizing that that submission might fail, counsel went on to consider the appropriateness of the punishment part selected by the sentencing judge. It was submitted that he had not followed the approach to section 2(2) of the 1993 Act, as amended, set out by the Lord Justice General in his opinion in the present case: [2011] HCJAC 20, paragraphs [43] to [46]. In particular, it could be seen from paragraph [9] of the sentencing judge's report that he had declined to take into account the factor referred to in section 2(2)(aa)(i). The sentencing judge had said that:

"In the present case I decided that 18 years was an appropriate period for punishment and retribution. I was not prepared to split the notional determinate sentence into separate parts for (a) punishment and (b) protection of the public (even assuming the latter exercise was practicable). The result was that I applied the one half to two thirds scale to the period of 18 years, and decided that the punishment part should rest at the upper end of that scale, namely 12 years."

It was submitted that the sentencing judge ought to have identified in terms of the provision quoted:

"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, or as the case may be, not made the order for life long restriction".

Thus there was an evident lack of transparency in the determination of the sentencing judge. In view of the selection of the period of 18 years to reflect retribution and deterrence, it might reasonably be inferred that, had the sentencing judge followed the requirements of the statute, his starting point, specified in section 2(2)(aa)(i) would have been substantially higher than 18 years. Had that been the case, doubt would have been cast upon the soundness of his selection of such a high starting point.

[7] Furthermore, the sentencing judge had erred in the adoption of the fraction of two thirds at the final stage of his calculation. It was recognized that he had been entitled to follow that course in terms of Ansari v Her Majesty's Advocate, but as the statutory provisions had been interpreted in the present case, it was now evident that such an approach was erroneous. As the Lord Justice General had observed in paragraph [52] of his opinion in the present case:

"... ordinarily, the exercise required by sub section (2)(aa)(iii) will involve taking half the figure brought out by that exercise up to that point, the seriousness of the offence having already been taken into account under sub section (2)(a) and (aa)(i)".

In relation to the question of the circumstances in which any departure from the fraction of one half might be appropriate, counsel referred to what had been said by Lord Reed in his dissenting opinion in Ansari v Her Majesty's Advocate at paragraphs [38] and [39]. It was apparent from that passage in that opinion that the circumstances that might justify the departure from the fraction of one half were of a specific and technical nature. No such circumstances existed in the present case.

[8] In the whole circumstances, particularly in the light of the majority decision in the present case, as explained in the opinion of the Lord Justice General, it was evident that the approach followed by the sentencing judge in selecting a punishment part had been erroneous and not in accordance with the provisions of section 2(2) of the 1993 Act, as interpreted by the larger court in this case. Accordingly, the court ought to quash the decision of the sentencing judge in relation to the punishment part, assuming that his decision to select a discretionary life sentence survived.

The submissions of the Crown
[9] Although the present appeal relates to the matter of a sentence, on which the Crown would not normally be expected to make submissions, we invited the Advocate depute to make any submission he wished in relation to the legal framework within which the appellant's submissions had been formulated. He confined himself to saying that, in the circumstances of the present case, having regard to the opinion of Lord Reed in Ansari v Her Majesty's Advocate, the Crown accepted that there were no circumstances that would entitle the court to depart from the fraction of one half in connection with section 2(2)(aa)(iii) of the 1993 Act.

The decision
[10] We have little difficulty in rejecting the initial contention advanced by counsel for the appellant to the effect that, in the present case, the imposition of a discretionary life sentence resulted in an excessive sentence. The first factor which has influenced us in that connection is the appellant's previous conviction in the High Court in Dunfermline on 6 January 1986 of assault with intent to ravish, in respect of which a sentence of 30 months imprisonment was imposed. Secondly, we are much influenced by the appalling and depraved nature of the offences of which the appellant has been convicted. The offence to which charge (11) related involved the repeated rape of a female child aged 10 to 11 years over a period of nearly two years. Charge (12) involved the rape of that same child and another female child then aged between 8 and 9 years. Thirdly, a matter of great importance is the evaluation of the risk presented by the appellant to the public and in particular to children. As we have narrated, these matters were considered and evaluated in the social enquiry report and the psychological report of Dr Gary Macpherson, which the sentencing judge had prudently thought fit to obtain before selecting his sentence. Dr Macpherson concluded that:-

"There is compelling evidence...that Morris Petch harbours a devious sexual interest in sexually violent and coercive behaviour with young and pre-pubertal females".

In the light of these various factors, we conclude that the sentencing judge was quite entitled to decide that the appropriate disposal in this case was the selection of a discretionary life sentence.

[11] We turn now to consider the submissions made about the punishment part of that sentence. Before coming to the particular circumstances, it is appropriate to make some observations concerning the law to be applied. The statutory background to the making of a decision to identify a punishment part in a case of this kind is to be found in section 2(2) of the 1993 Act, as amended. The proper approach to that section is dealt with in detail in the opinion of the Lord Justice General in the present case, in which a majority of the court concurred. In paragraph [52], he makes certain observations about Ansari v Her Majesty's Advocate and continues:

"I agree with Lord Reed (paragraph [30]) that the fact that, under the Parole Board (Scotland) Rules, the Board is entitled to take account of the nature of the relevant offence does not entail that its functions involve considerations of retribution or deterrence. I also agree with him that, ordinarily, the exercise required by sub-section (2)(aa)(iii) will involve taking half the figure brought out by that exercise up to that point, the seriousness of the offence having already been taken into account under sub-section (2)(a) and (aa)(i)".

[12] It appears to us also to be appropriate to highlight what the Lord Justice General said in paragraph [53]:

"I have accordingly come, with regret, to the view that, however unsatisfactory it may appear as a matter of comparative justice, Parliament has given statutory effect to an arrangement under which an indeterminate prisoner will, or at least may, become first eligible for consideration for parole at an earlier stage in his sentence than an equivalent determinate prisoner. If this situation is to be remedied, it is for Parliament to remedy it. The divisions of opinion expressed judicially in these appeals would suggest that a clear, well-considered legislative solution is called for. Meantime, sentencers should, in my view, adopt the approach to these provisions preferred by Lord Reed in Ansari."

[13] We think that it may be important and of some comfort to those concerned about the anomalous situation outlined by the Lord Justice General in paragraphs [42] and [53] of his opinion, to recognise what is the overall effect of the statutory provisions in question. Upon the expiry of the punishment part fixed by the court, the subject of the sentence is not released. What occurs is that the jurisdiction to determine the necessity for continued incarceration of the subject of the sentence passes from the court to the Parole Board, sitting as a judicial tribunal. The release of the subject of the order will occur only if and when that body conclude that that is consistent with the maintenance of an acceptable level of risk to the public. Such a state of affairs may never come into being; alternatively, if it does, that may happen only at some distant point in the future, until when the subject will remain incarcerated.

[14] In the light of the foregoing approach, we now turn to consider the sentencing judge's reasoning in selecting the punishment part of 12 years. In this regard, we have to observe that it is clear that he did not attempt to follow all of the provisions of section 2(2)(aa) of the 1993 Act, as amended. In particular, it is evident from paragraph [9] of his report to this court that he did not attempt to follow the first step required by sub paragraph (i) of that provision, saying that:

"I was not prepared to split the notional determinate sentence into separate parts for (a) punishment and (b) protection of the public (even assuming the latter exercise was practicable)".

The sentencing judge appears to doubt the practicability of the hypothetical exercise required by the particular statutory provision referred to, albeit that Parliament has considered that the exercise is a practicable one. In addition, for understandable reasons, he adopted an interpretation of section 2(2)(aa)(iii), which has been held to be unsound in the decision of the majority of the larger court in the present case.

[15] In these circumstances, we conclude that that aspect of his determination was unsound in law and must therefore be discarded. It then becomes a matter for this court to evaluate the circumstances ourselves and to identify a punishment part in a manner which is in accordance with the statutory requirements, as they have now been interpreted. As the Lord Justice General said in paragraph [43] of his opinion in the present case:

"[43] The first step is the identification of a determinate sentence which notionally might have been imposed if a life sentence had not been. Such a sentence would be likely, in some cases at least, to have built into it a custodial element for protection of the public. The potential length of that element should not, however, be exaggerated. Determinate sentences are basically retributive in character (see commentary on Ansari 2003 SCCR at p 376A-C) and the notional determinative sentence to be identified should not be extravagantly enlarged in a vain attempt to equiparate it with an indeterminate sentence."

[16] We recognize that there is an element of unreality in the exercise which requires to be undertaken. That is because where the circumstances of an offence and offender are such that a sentencer contemplates the selection of a discretionary life sentence, he or she will not be likely to envisage what determinate sentence might be seen as its equivalent, or alternative. For that reason, in undertaking this first step, we do not consider that the sentencer need necessarily be constrained within the limits of determinate sentences which have actually been imposed in comparable circumstances. Ex-hypothesi, the determinate sentence to be identified, following the intention of Parliament, is one which has never been and never will be imposed. The recognition of this aspect of the matter renders the exercise particularly difficult, but it is one which must be undertaken. Doing the best that we can in the circumstances of this case, having regard to all the relevant circumstances, we would identify as appropriate in the first stage of the exercise a determinate sentence of 20 years duration.

[17] The nature of the exercise required by section 2(2)(aa)(ii) of the 1993 Act is fully described in paragraph [44] of the opinion of the Lord Justice General in this case:

"The second step is to strip out of that notional sentence any element for public protection. That element is expressed in O'Neill as 'lacking the special requirement of public protection which has led to the life sentence' (page 307) and 'leaving out of account the element of protection of the public' (page 308). The former expression might be construed as stripping out of the hypothetical determinate sentence only that element notionally equivalent to the protection which called for the life sentence but leaving a protective custodial element which might be included in any determinate sentence. But the latter expression is not, in my view, open to such a construction; it envisages stripping out the whole protective element. This is, moreover, the more natural reading of the court's Opinion read as a whole. In the preceding paragraph on page 308 the Lord Justice General had said '... in the normal case the court should decide what period of detention would be appropriate, purely as punishment for the crime, and should then designate half that period' (emphasis added). It is also, in my view, the natural reading of step (ii) in section 2(2)(aa): '(ignoring the period of confinement, if any, which may be necessary for protection of the public)' - a repetition of the same words used earlier in the subsection - points, in my view, to the ignoring/stripping out of the whole protective element. The first and second steps identified judicially in O'Neill are closely paralleled by paras (i) and (ii) of section 2(2)(aa) of the 1993 Act (as amended in 2001)".

Making the best judgment that we can of that particular element in the notional determinate sentence which we have developed, we consider that a period of 4 years should be excluded from the notional determinate sentence. The result of that step is therefore a figure of 16 years.

[18] The third step in the exercise is that required by section 2(2)(aa)(iii) of the 1993 Act. This part of the exercise was described by the Lord Justice General in paragraph [45] of his opinion in this case in this way:

"The third step is more problematic. It requires taking into account the provisions for release made, for determinate sentences, in section 1. It involves an element which is artificial since the hypothetical prisoner would not serve a 'stripped down' proportion of his sentence before being released but the requisite proportion of the whole of his sentence; but as the exercise is itself hypothetical, perhaps a measure of artificiality is unavoidable. The critical phrase is 'the proportion ... which a prisoner ... would or might serve before being released, whether conditionally or on licence, under section 1...'. The disjunctive expression must be read, in my view, disjunctively (see per Lord McCluskey in Ansari at para [2]) - that is, the prisoner of whom it can be said that he 'would' serve a proportion is the prisoner who would be released unconditionally; he, the short-term prisoner, would be so released having served half of his sentence. Correlatively, the prisoner who 'might' be released on licence is the long-term prisoner; he might be released halfway through his sentence, though, on the other hand, he might not be and might serve a larger proportion up to two-thirds. But just as in the case of the short-term prisoner the expiry of the half proportion is the earliest date, albeit the mandatory date, when he can be released, so I would be inclined to read 'might' serve before being released as a reference to the earliest possible date when the long-term prisoner might be released, namely, again a half. That would be consistent with O'Neill. Against that construction it has to be said that, if Parliament had intended in both cases to refer to the halfway stage, it could have expressed that intention much more simply".

[19] The Lord Justice General goes on in paragraph [52] of his opinion to contemplate the circumstances in which a fraction other than one half might properly be adopted. He states that ordinarily the exercise required by sub section (2)(aa)(iii) will involve taking half the figure brought out by the exercise up to that point. The circumstances in which there might be a departure from that fraction are considered by Lord Reed in his opinion in Ansari v Her Majesty's Advocate in paragraphs [38] and [39]. What the Lord Justice General makes clear is that the seriousness of the offence for which the sentence is being imposed will not constitute a justification for a departure from the fraction of one half, since the seriousness of the offence will already have been taken into account under sub section (2)(a)(aa)(i).

[20] In the circumstances of this case, there being no reason for any departure from the use of the fraction of one half, we conclude that the punishment part appropriate in the present case would be one of 8 years duration. We shall therefore quash the decision of the sentencing judge in so far as it specifies a punishment part of 12 years and substitute for it one of 8 years.