For the appellant: Ogg (sol adv); Callahan McKeown, Renfrew

For the Crown: Scullion, AD; Crown Agent

28 March 2014

I Introduction

[1] On 12 May 2011 at Edinburgh High Court the appellant was convicted of the following charges:

"(1) on 12 or 13 June 2008 at ... [the appellant's home], Edinburgh you ... did assault Samantha Wright ... by means to the Prosecutor unknown to her injury and you did murder her;

and

(2) between 12 June 2008 and 13 October 2009, both dates inclusive, at ... [the appellant's home] and Craigmillar Police Station ... both Edinburgh and elsewhere to the Prosecutor unknown, you ... did having committed the crime libelled in Charge (1) hereof, and in the knowledge that said crime would be, if discovered, investigated by the authorities and being conscious of your guilt in respect thereof did

(a) Between 12 June 2008 and 12 October 2009, both dates inclusive, at ... [the appellant's home], Edinburgh, attempt to dismember the remains of Samantha Wright ... by cutting her neck and body with a knife or similar instrument;

(b) Between 12 June 2008 and 12 October 2009, both dates inclusive, at ... [the appellant's home] and elsewhere, repeatedly fail to notify the police or other relevant authorities of the death of said Samantha Wright whereby said authorities were unable to conduct investigations into the manner of the death of said Samantha Wright and in particular ascertain the cause of her death;

(c) Between 12 June 2008 and 12 October 2009, both dates inclusive, at ... [the appellant's home] conceal the remains of said Samantha Wright within the house there and remove her remains from the house there, partially remove her clothing and place said remains in a refuse bin in the rear garden there and cover her remains with foliage;

(d) Between 12 June 2008 and 12 October 2009, both dates inclusive, at ... [the appellant's home] turn over a mattress stained with the blood of said Samantha Wright in order to conceal said blood staining;

(e) Between 12 June 2008 and 12 October 2009, both dates inclusive, at ... [the appellant's home] and elsewhere to the Prosecutor unknown, dispose of bedding stained with the blood of said Samantha Wright and dispose of clothing, footwear and the personal effects of said Samantha Wright;

(f) On 12 and 13 October 2009 at Craigmillar Police Office ... Edinburgh, pretend to ... [police officers], that

(i) you had never met said Samantha Wright, did not know of her whereabouts and that you had no recollection of speaking to her on 12 June 2008;

(ii) you were not residing at ... [the appellant's home] as at 12 June 2008 but were residing with ... [AB] as at that date at [address], Edinburgh;

(iii) in June 2008 you had on occasions resided with [CD] at ... [address], Paisley;

(iv) in June 2008 you had on occasions resided with ... [EF] at ... [address], Edinburgh;

(v) you had visited [GH] at [address], Edinburgh on 12 June 2008;

(vi) you had only ever been in the rear garden area at ... [the appellant's home], Edinburgh on one occasion; and

(vii) you had never seen a green coloured refuse bin at or associated with the property at ... [the appellant's home]

the truth being as you well knew that you had met said Samantha Wright on 12 June 2008 at Hanover Street, Edinburgh, that you were residing at ... [the appellant's home] as at 12 June 2008 and not with said [AB] at [address], that you had not resided with said [persons CD and EF] in June 2008, that said [GH] had died on 28 December 2005, that you had been in the rear garden of ... [the appellant's home] on more than one occasion and you were aware of there being a green coloured refuse bin associated with and at ... [the appellant's home], Edinburgh and all this you did with intent to prevent the police and the Procurator Fiscal from conducting an investigation into the death of said Samantha Wright and to avoid detection, arrest and prosecution and conviction in respect of Charge (1) hereof and this you did with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice."

[2] On the first charge, the sentencing judge imposed a life sentence with a punishment part of 23 years, three years of which he attributed to the matters covered by the second charge. On the second charge he imposed a separate concurrent sentence of 6 years' imprisonment.

[3] The appellant was 59 years old at the date of his conviction. His previous convictions included a conviction in 1974 for murder. On his being charged with the offences in the indictment, the appellant's life licence was revoked. He served 545 days of imprisonment before the present sentences were imposed.

[4] Since the body was not discovered until 16 months after the murder, the mechanism of death could not be established. The sentencing judge proceeded on the basis that the appellant had committed a violent attack on a young woman whom he had invited to his home. He took account of the time spent in prison before conviction.

[5] The principal issue in this appeal concerns the extent, if any, to which, when imposing a life sentence and fixing the punishment part, the sentencing judge should take account of the accused's conviction on another offence that is libelled on the same indictment. That requires us yet again to visit section 2, as amended, of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (the 1993 Act). A separate aspect of it exercised the minds of five judges in Ansari v HM Adv (2003 JC 105) and of seven judges in Petch v HM Adv (2011 JC 210).

[6] There are also questions as to the significance of charge 2 to the punishment part in the circumstances of this case, the cause of death being unknown by reason of the appellants' concealment of the body; and as to the relationship between the amount of the punishment part that is attributable to charge 2 and the length of the sentence imposed on that charge.

Life sentences and minimum terms

Murder (Abolition of Death Penalty) Act 1965

[7] Section 1(2) of the 1965 Act permitted the sentencing judge, at his discretion, to recommend a minimum period that a convicted murderer should serve before release. In making a recommendation the sentencing judge could take into account the consideration of public protection. Therefore he almost inevitably took into account any other offences of which the accused was convicted on the same indictment (eg Casey v HM Adv 1993 SCCR 453, at p 458B-D).

[8] The judge's recommendation was persuasive only. The Secretary of State could release the prisoner before or after the expiry of any recommended minimum term, after consultation with the sentencing judge and the Lord Justice General in every case. The decision of the Secretary of State was based on an assessment of the public interest (cf R (Anderson) v Secretary of State for the Home Department 2003 1 AC 837 at para [14]). That remained the position until 1993.

Prisoners and Criminal Proceedings (Scotland) Act 1993

[9] The Prisoners and Criminal Proceedings (Scotland) Act 1993 introduced a means of specifying a minimum term for discretionary life prisoners. The court could make an order that after a certain time, known as the "relevant part," the prisoner could require the Secretary of State to refer his case to the Parole Board, which in turn could direct the prisoner's release (s 2). In calculating the "relevant part," the court was to set such period as it considered to be

"appropriate taking into account ― [inter alia]

(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 ... " (s 2(2)).

The order constituted part of the prisoner's sentence and could be the subject of appeal accordingly (s 2(3)). If the prisoner was also subject to a life sentence for murder, the provisions for setting a "relevant part" did not apply (s 2(9)(a)). A decision to release in that case was therefore for the Secretary of State.

[10] The requirement that the other offences should be "associated with" the charge for which life imprisonment was imposed suggests, in my view, that the other offences relevant to that provision were offences committed as part of the same incident, or during the same course of conduct.

Convention Rights Compliance (Scotland) Act 2001

[11] The Convention Rights Compliance (Scotland) Act 2001 (the 2001 Act) effected a fundamental change to section 2 of the 1993 Act. The minimum period now became the "punishment part," which was to be fixed by reference to retribution and deterrence; and it was no longer necessary for the other offences of which account was to be taken to be "associated" with the primary charge. It was sufficient that they should appear on the same indictment.

[12] The 2001 Act also added the following provision to the Criminal Procedure (Scotland) Act 1995 (the 1995 Act):

"Only one sentence of imprisonment for life to be imposed in any proceedings

205D- Where a person is convicted on the same indictment of more than one offence for which the court must impose or would, apart from this section, have imposed a sentence of imprisonment for life, only one such sentence shall be imposed in respect of those offences."

This provision necessarily required that the single punishment part should reflect all of the charges of which the accused was convicted in the same indictment.

Section 2 of the 1993 Act (as now amended)

[13] Section 2 of the 1993 Act applies to sentences of life imprisonment for murder, to discretionary life sentences and to orders for life-long restriction (OLRs), those sentenced under this provision being referred to collectively as "life prisoners." Section 2 requires the sentencing judge to impose a "punishment part," being the period for which the prisoner must remain in prison before he can be considered for parole. The punishment part, so far as relevant to this case, was until 2012 defined by section 2(2) as being:

"such part of his sentence ... as the court considers appropriate to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which would be necessary for the protection of the public) taking into account [inter alia]-

(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 ... "

The parenthetical phrase has been deleted since this appeal was lodged (cf Criminal Cases (Punishment and Review) (Scotland) Act 2012, s 1(2)(a); Criminal Cases (Punishment and Review) (Scotland) Act 2012 (Commencement, Transitional and Savings) Order 2012 (SSI No 249)); but the deletion does not affect the present question.

Cameron v HM Adv (2011 HCJAC 29)

[14] In Cameron v HM Adv the appellant was convicted of murder; of attempting to defeat the ends of justice by disposing of the body and committing other acts to avoid detection, and of theft from the post office account of the deceased. This court quashed the punishment part because in fixing it the sentencing judge had added a period to reflect the conviction on the other charges. On that point I said:

"I cannot see how the sentence imposed on the murder charge can properly be influenced by subsequent events constituting separate crimes on which separate sentences have been imposed" (para [44]).

Submissions

For the appellant

[15] The solicitor advocate for the appellant accepts that where the other offences libelled form part of the same course of conduct as the murder charge, it is permissible to reflect them in the punishment part for the murder; but she submits that they should not also be the subject of concurrent sentences, as, for example, in HM Adv v Gilroy (2013 HCJAC 18). Conversely, an unconnected charge should not be reflected in the punishment part. In such a case only a concurrent sentence should be imposed. She submits that although section 2 of the 1993 Act requires the court to "take account" of the other charges on the indictment, that requirement is satisfied if the court takes cognisance of those charges and considers whether to increase the punishment part by reason of them. It does not make such an increase automatic.

[16] The solicitor advocate for the appellant submits that the sentence was, in any event, excessive. As the trial judge had taken account of the appellant's imprisonment before sentencing, this meant the appellant was sentenced to an equivalent of a punishment part of 24 years, 8 months. The mechanism of death being unknown, the appellant should have been sentenced on the basis that there were no unusual aggravating factors (Cameron v HM Adv, supra).

For the Crown
[17] The Crown submits that the court must take account of other offences on the indictment whether or not they are related to the murder charge (Turner v HM Adv 2007 SCCR 194; McDonald v HM Adv, 2011 HCJAC 71). The adjustment to the punishment part is simply a mechanism to ensure that a penalty is served in respect of the other charges. My observation in Cameron v HM Adv (supra), should not be regarded as a general statement of principle, otherwise it would conflict with other decisions of the court and with the terms of section 2 (Turner v HM Adv, supra; McDonald v HM Adv, supra). Section 2 does not require an automatic increase. The sole consideration is the relative gravity of the other offence. No increase is necessary where the other offence is comparatively minor. The sentencing judge is not required to quantify the amount of any increase.

[18] The Crown also submits that an attempt to defeat the ends of justice by concealment or destruction of the victim's body is a matter of which account should be taken in setting the punishment part. It would be wrong for an accused to receive a lighter penalty because the accused's concealment of the crime denied the court the knowledge of how the murder was accomplished. The main determinant of the sentence should be the length of time for which the body was concealed. A heavier sentence would be justified where the cause of death could not be ascertained. It could be heavier still if no body was found.

Conclusions

The interpretation of section 2(2), as amended

[19] For a proper understanding of this case, the essential point is that the amendments made to section 2 by the 2001 Act fundamentally re-wrote it. What had previously been, in a case such as this, a punishment part fixed by reference only to the murder charge became a punishment part fixed by reference to the totality of the convictions that had been returned on the indictment. The extent to which the convictions on other charges were relevant to the punishment part was in every case a matter for the judgment of the sentencing judge.

[20] In my opinion, this outcome was a logical legislative response to the principle that no sentence can be imposed consecutively to a life sentence. If any other offence of which the accused was convicted on the same indictment were to be irrelevant to the punishment part, a concurrent sentence imposed for it would be in effect no sentence at all.

[21] I conclude therefore that the sentencing judge correctly applied section 2, as amended, in this case.

[22] Being persuaded that the approach of the sentencing judge was correct, I am also persuaded that I was in error in Cameron v HM Adv (supra) in the comment at paragraph [44] of my Opinion that I have quoted.

[23] On reflection, I consider that my comment was fallacious in its reference to "the sentence imposed on the murder charge." If the punishment part in that case had truly been imposed on the murder charge, it would have been illogical to take into account subsequent events constituting separate crimes. But the point, as I now see it, is that the current version of section 2 no longer ties the punishment part solely to the murder conviction. Since the approach that I took in that case was concurred in by my colleagues and was the ratio decidendi of the court's disposal of the appeal, I consider that Cameron v HM Adv should be over-ruled.

Applying section 2(2) in practice

[24] In the difficult process of applying section 2 in practice, there are, I think, some particular points that the sentencing judge should keep in mind. The first is that in my opinion the direction to the sentencing judge to take into account "other offences of which the life prisoner is convicted on the same indictment" leaves it open to the sentencing judge not to increase the punishment part on account of such other offences if in his judgment the circumstances warrant that course; for example, where there is a conviction on a minor charge brought solely for evidential purposes in connection with the principal charge.

[25] The second point relates to the sentence on the lesser charge. In a case such as this, if the Crown moves for sentence on both charges, the sentence on the lesser charge must be imposed to run concurrently with the sentence on the murder charge. Moreover the sentence should be assessed on that charge as if it were a free-standing charge. It will become relevant if the conviction on the murder charge should be quashed.

[26] Third, the sentencer should keep in mind that in considering the increase to the punishment part that is referable to any other charge on the same indictment, the amount of the increase is limited to that part of the punishment for that charge that is attributable to retribution and deterrence.

[27] This last point raises a further consideration, namely that any sentence that would have been passed on the other charge would be subject to the early release provisions; whereas the increase made to the punishment part on account of that charge will not.

[28] I conclude therefore that in applying section 2(2) as amended in a case such as this, the sentencing judge should first decide whether the conviction on the lesser charge should be reflected in the punishment part. He should then make an overall judgment having regard to the punishment part that would have been appropriate if the murder conviction stood alone; the element of retribution and deterrence attributable to the conviction on the lesser charge; and the loss of the opportunity for early release that an independent sentence on that charge would have given.

Disposal
[29] On the view that I have taken as to the soundness of the decision in Cameron v HM Adv (supra), the appeal against sentence, so far as based on that point, is unfounded. That was the major point in the appeal. However, since other aspects of the merits of the appeal were only touched upon in the discussion, the solicitor advocate for the appellant and the advocate depute may wish to address us on them at greater length. I have in mind, for example, the fact that the cause of death is not known and the fact that although the sentencing judge took account of time spent in custody before conviction, he did not backdate the sentence to the date on which the appellant was returned to custody on the revocation of his licence. I propose to your Lordships and to your Ladyship that we should continue the appeal for a further hearing.

For the appellant: Ogg (sol adv); Callahan McKeown, Renfrew

For the Crown: Scullion, AD; Crown Agent

28 March 2014

[30] I agree with the views expressed by your Lordship in the chair respecting the interpretation and practical application of section 2(2) of the 1993 Act. I also agree that the decision in Cameron v H M Advocate should be disapproved as being inconsistent with that interpretation. Your Lordship's proposal that the appeal be continued for the purposes which your Lordship indicates is one in which I also concur.

For the appellant: Ogg (sol adv); Callahan McKeown, Renfrew

For the Crown: Scullion, AD; Crown Agent

28 March 2014

[31] I agree with the views expressed by your Lordship in the chair regarding the interpretation and application of the provisions of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. For the reasons explained, I agree that the decision in Cameron v H M Advocate should be over-ruled. As for the next steps in the appeal, I agree that there should now be a further hearing to address the outstanding issues, as outlined in paragraph 29 of your Lordship's opinion.

For the appellant: Ogg (sol adv); Callahan McKeown, Renfrew

For the Crown: Scullion, AD; Crown Agent

28 March 2014

[32] For the reasons given by your Lordship in the chair, I agree that the case of Cameron v HM Advocate should be over-ruled. I also respectfully agree with the guidance that your Lordship provides to sentencing judges when determining the punishment part where, in addition to being convicted of a charge in respect of which a life sentence is imposed, an accused person is also convicted of another charge on the same indictment. I have nothing to add.

For the appellant: Ogg (sol adv); Callahan McKeown, Renfrew

For the Crown: Scullion, AD; Crown Agent

28 March 2014

[33] I agree with the opinion of your Lordship in the chair, and have nothing to add.