Ansari v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 02 May 2003 |
| Neutral Citation | 2003 SCCR 347 |
| Date | 02 May 2003 |
| Docket Number | No 13 |
| Court | High Court of Justiciary |
JC
L J-C (Gill), Lord Kirkwood, Lord Marnoch, Lord Reed and Lord McCluskey
Justiciary - Sentencing - Discretionary life sentence - Punishment part - Early release - Method of calculation - Prisoners and Criminal Proceedings (Scotland) Act 1993 (cap 9), sec 2(2)1
Section 1 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 provides that a prisoner sentenced to less than four years is entitled to be released unconditionally after he has served one-half of his sentence, and that a prisoner sentenced to four years or more is eligible for release on licence after he has served one-half of his sentence if the Parole Board so recommends, and is entitled to release on licence after he has served two-thirds of the sentence.
Section 2 of the Act as originally enacted provided for the eligibility for release of discretionary life prisoners. Discretionary life prisoners were defined in sec 2(1) as life prisoners: (a) whose sentence was imposed for an offence the sentence for which was not fixed by law; and (b) in respect of whom the court which sentenced him for that offence made the order mentioned in subsec (2). Section 2(4) provided that such a prisoner was entitled to be released on licence if the Secretary of State was directed to release him by the Parole Board. Section 2(6) provided that the prisoner was entitled to have his case referred to the Parole Board at any time where that subsection applied. Section 2(4) and (6) only applied to such a prisoner after he had served 'the relevant part' of his sentence. Section 2(2) of the Act was in the following terms: 'The order referred to in subsection (1)(b) 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 relevant 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; and (b) any previous conviction of the life prisoner.' Section 2(2) was amended in 1997,inter alia, to add an additional factor (c) which the court required to take into account, namely where the offender pled guilty the stage in the proceedings at which the intention to plead guilty was indicated, and the circumstances in which that indication was given.
Section 2(2) was further amended in 2001 by the Convention Rights (Compliance) (Scotland) Act 2001 (asp 7), and is now in the following terms: '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 that 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 (c) [provisions relating to pleading guilty as introduced by the 1997 amendments].'In 1996 the appellant pled guilty to the abduction, assault and rape of a stranger. The circumstances of the rape were perverted and humiliating. The appellant was sentenced to life imprisonment and an order was made specifying that the relevant part of the sentence should be 12 years. In selecting the relevant part the sentencing judge took account of public protection and safety and did not take account of the prospects of early release that would be open to a prisoner serving a determinate sentence for a similar offence. On appeal that period was reduced to nine years, on the grounds that the sentencing judge had erred in taking into account the risk the appellant posed to the public. The appeal court did not take into account early release provisions. The Scottish Criminal Cases Review Commission referred the case in terms of sec 194B of the Criminal Procedure (Scotland) Act 1995 (cap 46). The Commission noted that the period of nine years reflected a determinate sentence of 18 years, which might be regarded as excessive even for a crime as serious as that committed by the appellant.
Held: (1) that the decision of the appeal court was unsound, and the relevant part of the appellant's sentence should have been assessed with the early release provisions in view (p 114C); (2) that the court imposing a discretionary life sentence required to assess what determinate sentence it would have imposed, having regard to the general considerations set out in sec 2(2)(a), (b) and (c), if a discretionary life sentence had not been available (the 'notional determinate sentence'), and then deduct from the notional determinate sentence the element attributable to the protection of the public (the 'risk element'), and finally fix a proportion of the notional determinate sentence as reduced in the light of the early release provisions that would be available to a prisoner sentenced to a determinate sentence for the same offence (pp 114E-115H); (3) that the sentencing judge will normally fix the appropriate proportion within the limits of one-half and two-thirds, but in a case of great gravity the proportion may be higher than two-thirds (pp 116C, 133D); and (4) that the appropriate notional determinate sentence under deduction of the risk element was 13 years, and the punishment part was nine years (pp 116G, 117F); and decision quashed in part and a punishment part of the same length substituted.
(Per Lord Reed diss) (1) that sec 2(2) does not require the court to impose a sentence, but rather to decide the point at which the prisoner's case should be considered by the Parole Board, and the period specified should be the equivalent proportion of the notional sentence so as to ensure that the period before the Parole Board first starts to consider the possibility of releasing the prisoner on licence is no longer than it would have been had considerations of public safety not dictated the need for an indeterminate rather than a determinate sentence, and the appropriate proportion will generally be one-half (p 125B-E); (2) that the specified period is arrived at by deciding on an appropriate sentence to satisfy the requirements of retribution and deterrence, and then discounting the notional sentence so as to bring the specified period into line with the period which would be served by a determinate sentence prisoner prior to being considered by the Parole Board (pp126C-E, 129C-E); (3) that the court cannot take the gravity of the offence into account when deciding upon the proportion of the notional determinate sentence under subpara (aa)(iii), when the court has already taken account of the gravity of the offence when arriving at that notional sentence under subparas (aa)(i) and (ii) (p 128B-E); (4) that situations may arise where a period longer than half of the notional sentence should be specified (pp 129H-130B); and (5) that an appropriate determinate sentence would have been 13 years, with the appropriate punishment period being six-and-a-half years (p 132B).
O'Neill v HM AdvocateUNK 1999 SCCR 300 considered.
YUSUF ANSARI, formerly known as George Archibald Clark, was charged on indictment with,inter alia, the abduction, assault and rape of a stranger. He pled guilty. On 15 October 1996 he was sentenced to life imprisonment, the relevant part of his sentence for the purposes of sec 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 being 12 years. On appeal the relevant part was reduced to nine years. The Scottish Criminal Cases Review Commission referred the case in terms of sec 194B of the Criminal Procedure (Scotland) Act 1995.
Cases referred to:
Anderson v HM AdvocateUNK 1998 SCCR 196
Clark v HM AdvocateUNK 1997 SCCR 416
Cronin v HM AdvocateUNK 1993 SCCR 158
Elliott v HM Advocate (No 2) 1997 SLT 1229
Hussain v United KingdomHRC (1996) 22 EHRR 1
McPhee v HM AdvocateUNK 1990 SCCR 313
McRae v HM AdvocateUNK 1987 SCCR 36
Nicol v HM AdvocateUNK 2000 SCCR 499
O'Neill v HM AdvocateUNK 1999 SCCR 300
R v Haywood (2000) 2 Cr App R (S) 418
R v Marklew and Lambert [1999] 1 Cr App R (S) 6
R v Sczerba (2002) 2 Cr App R (S) 85
R v Secretary of State for the Home Department, ex parte HandscombUNK (1988) 86 Cr App R 59
Robertson v HM AdvocateUNK 1997 SCCR 534
Stafford v United KingdomHRC (2002) 35 EHRR 32
Thynne, Wilson and Gunnell v United KingdomHRC (1990) 13 EHRR 666
Weeks v United KingdomHRC 1988 10 EHRR 293
Textbooks etc referred to:
Kincraig Committee, Report on Parole and related Issues in Scotland (Cm 598, 1989)
Scottish Parliament Official Report 30 May 2001, cols 1090-1091
The appeal was heard before the High Court of Justiciary comprising the Lord Justice-Clerk (Gill), Lord Kirkwood, Lord Marnoch, Lord Reed and Lord McCluskey on 28 November 2002.
At advising on 2 May 2003 -
Lord Justice-Clerk (Gill) -
[1] The Scottish Criminal Cases Review Commission has referred the case of Yusuf Ansari...
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