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Robert Chalmers V. Her Majesty's Advocate

Judgment Session Cases Cited authorities 24 Cited in 3 Precedent Map Related
Vincent
JurisdictionScotland
JudgeLord Eassie,Lord Wheatley,Lord Justice General,Lady Smith,Lord Brodie
Judgment Date28 March 2014
Neutral Citation[2014] HCJAC 24
Docket NumberXC407/11
Published date28 March 2014
CourtHigh Court of Justiciary
Date28 March 2014

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Eassie Lady Smith Lord Brodie Lord Wheatley [2014] HCJAC 24 Appeal No: XC407/11

OPINION OF THE LORD JUSTICE GENERAL

in

APPEAL AGAINST SENTENCE

by

ROBERT CHALMERS

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

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."

...

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