Hansard

I refer members to my entry in the register of interests as a member of the Faculty of Advocates. One of the advantages of the recess is that it enables one to catch up with reading: I mean not light reading like Ian Rankin, but heavy reading of the decision in Petch and Foye.

It might help if we remind ourselves how we got here. A 1990 decision of the European Court of Human Rights held that discretionary life sentences that were imposed by English courts were composed of a punitive element and a security element. The ECHR concluded in that case that, once the punishment part had passed, an individual was entitled to regular reviews of his continued detention.

English legislation was passed in 1991 to deal with the situation, and contained in its provisions for the release of discretionary life prisoners a specific cross-reference to the provisions for release of long-term prisoners who had been sentenced to determinate terms. That is important in ECHR terms, but the 1993 legislation for Scotland did not—for whatever reason—contain that cross-reference.

However, in a 1999 High Court case—O’Neill v HM Advocate—the appeal court embarked on a clarification of the position by the exercise of constructing a notional determinate sentence that would be arrived at by deciding on the period of imprisonment that would have been appropriate purely for the purpose of punishment if a determinate sentence had been imposed, and then specifying a period of one half of that—or two thirds in exceptional circumstances—as the notional sentence that a prisoner would be required to serve before he could be released, if a determinate sentence had been imposed. That is in keeping with the statutory provisions for release on licence in the 1993 act. It is clear from the decision in the O’Neill case and, in particular, from the comments of the late Lord Rodger, that the court was aware of the potential difficulty that that posed, but the approach was arrived at with the overwhelming purpose of achieving comparative justice.

The Convention Rights (Compliance) (Scotland) Act 2001 was passed to give statutory force to the approach in the O’Neill case and makes it clear that no part of the punishment part should include any element that is necessary for protection of the public. The then Minister for Justice, Jim Wallace, indicated when moving an amendment to that bill that

“the court is required to take into account the period that a prisoner sentenced to a determinate sentence of that duration would have served before becoming eligible for release under the early release provisions that are set out in … section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993.”—[Official Report, 30 May 2001; c 1091.]

However, by definition, one half of the sentence for a determinate sentence may in some cases include an element for protection of the public. That was the problem that was brought to a head in Petch and Foye; Christine Grahame talked about the majority decision in that regard.

In relation to the 2001 act, Lord Clarke stated, in a typically robust manner:

“It cannot, in my opinion, be seriously argued that the legislature had not appreciated this possible anomaly in passing the legislation in the terms it did, when the Lord Justice General had spelt it out so clearly in the judgment which the legislature was seeking to enshrine in the provisions in question.”

Whatever the deficiencies of the 2001 act, the Scottish Government is today seeking to rectify the problem.

Are the provisions in the bill too complex? Insofar as the bill provides for the court to set a minimum period of imprisonment for the non-mandatory life sentence at between half and all of the notional stripped-down punitive period, the anomaly will be removed. The bill will give discretion to judges in sentencing, but will also require judges to engage in a difficult exercise. As Michael Meehan of the Law Society of Scotland said, judges will have to consider, in relation to what is a relatively rare form of disposal, not only the discretionary life sentence but what they might have done had they gone down a different route, and compare the two. He went on to say that

“the exercises are different because, of course, the paramount consideration in cases with a discretionary life sentence is protection of the public.”—[Official Report, 31 January 2012; c 866.]

The Law Society made the important point that, except in a situation in which an extended sentence is imposed, the issue of protection of the public is not generally considered discretely by a sentencing judge when passing a determinate sentence.

The Scottish Government’s response is to accept that the provisions are complex but not unnecessarily complex in an undoubtedly complex area of law.

I note the Government’s comments on the value of a framework setting out the details of the rules that are to be applied by the sentencer, but I am also pleased to note that it would be happy to consider the precise terms of any specified alternative. Given that we are in what the Law Society implies is an artificial situation, if the aim is to give judges flexibility in sentencing in order to avoid the Petch and Foye anomaly, it seems paradoxical to do so in what has been described as a rigid, step-by-step way.

On double counting, the grounds on which the court may set a punishment part of a non-mandatory life sentence at more than one half of the notional equivalent determinate sentence, such as the seriousness of the offence and any previous convictions, are similar to the criteria that are used to determine the length of the overall notional determinate sentence. Is this double counting? Will it give rise to ECHR challenges? The Scottish Human Rights Commission sits on the fence. Although the Scottish Government’s position is that the criteria are to be applied for separate purposes—which I accept—there are two separate purposes within the overall sentencing framework.

The committee’s view was that the Government might have benefited from consulting more widely before introducing the proposals. Understandably, the Government has indicated that because this was not a new policy, and there was a need for swiftness in resolving the anomaly, it has got the balance right, particularly given the low response to the committee’s call for evidence. Again, it is hard to disagree, but I think that we have to accept that the scheme that is proposed has not generated much enthusiasm. Therefore, although I welcome this element of the bill, there remains scope for further consideration of its detail and for seeking help from stakeholders on consideration of whether there is any realistic alternative. Certainly, it is not helpful to criticize without alternatives.

Having perhaps been overly hasty in 2001, Parliament should endeavour to learn from that experience.

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