James Ferguson+stuart Cameron+bruce Balfour+thomas Nolan V. Her Majesty Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Clarke,Lord Drummond Young |
| Neutral Citation | [2014] HCJAC 19 |
| Year | 2014 |
| Published date | 28 February 2014 |
| Court | High Court of Justiciary |
| Docket Number | XC224/13, |
| Date | 28 February 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| [2014] HCJAC 19 | |
| Lord Justice Clerk Lord Drummond Young Lord Clarke | Appeal Nos: XC224/13, XC258/13, XC292/13 and XC385/13 OPINION OF LORD CARLOWAY, the LORD JUSTICE CLERK in the Appeals against Sentence by (1) JAMES DOUGLAS FERGUSON; (2) STUART CAMERON; (3) BRUCE JAMES BALFOUR; and (4) THOMAS NOLAN Appellants; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act (1): JDM Macara QC (sol adv), NG Allan, Solicitor Advocate; BCKM
Act (2): J Keenan, Solicitor Advocate; Capital Defence (for Keegan Smith, Livingston)
Act (3): SM McCall, Gilchrist; John Pryde & Co
Act (4): A Ogg, Solicitor Advocate; Drummond Miller (for JC Hughes, Glasgow)
Alt: Fairley QC AD; the Crown Agent
28 February 2014
Legislative History
[1] For many years, Parliament has sought to augment the powers of the courts in relation to the range of penalties which might be imposed on convicted persons. These efforts have been designed, in large part, to provide a variety of disposals which might be thought appropriate within the general context of selecting a penalty which reflects societal needs for punishment, deterrence and the protection of the public. Rehabilitation of the offender may play a part in this exercise. In relation to offences meriting a custodial disposal, until 1967 there was no provision for any formal post release supervision. With the introduction of parole in that year (Criminal Justice Act 1967, Part III), social work supervision became a standard condition for all released on licence. It was also possible to add conditions in relation to drink or drugs counselling and residence. The parole system was regarded as successful, judging by the limited number of persons recalled, but its use, in the case of sentences of 5 years or more, came to be restricted to periods of a few months as a result of Government policy in the mid-1980s.
[2] The system was reviewed by the Kincraig Committee, which was established in December 1987 and had, as part of its remit, the examination of the role of social work supervision on release. Their report in February 1989 (Parole and Related Issues in Scotland, Cmnd 598) led to the introduction of the conditional release and parole system in the Prisoners and Criminal Proceedings (Scotland) Act 1993. There were several salient features to the new system. First, as a generality, there would be no supervision of prisoners conditionally released early (all short term prisoners after one-half of their sentences and all long term prisoners after two-thirds). In addition, the possibility of parole would be available for all long term prisoners (those serving 4 years or more) after they had served one-half of their sentences. Parole would also be available, but with no minimum period specified, for prisoners serving mandatory life sentences. The court was given the option of specifying a minimum term in respect of discretionary life prisoners (see 1993 Act, ss 1 and 2). The specification of the minimum "punishment part" became mandatory for all life prisoners following upon amendments to the 1993 Act in the Convention Rights (Compliance) (Scotland) Act 2001 (s 1).
[3] It was the 1993 Act (s 14) which introduced the supervised release order (SRO) in respect of short term prisoners. This innovation (Criminal Procedure (Scotland) Act 1995, s 209) allowed the court to specify a period of compulsory supervision upon release if it considered that:
"it is necessary to do so to protect the public from serious harm on his release" (emphasis added).
Notwithstanding that any supervision, which might include conditions of various types, was to be imposed in respect of persons who, it was anticipated, might cause the public "serious harm", the maximum period of supervision for these prisoners was (and is) 12 months.
[4] The next significant development came 5 years later with the introduction of the extended sentence (1995 Act, s 210A) by the Crime and Disorder Act 1998 (s 86)). This was a United Kingdom statute, in terms of which a system of extended sentences was introduced for England and Wales (s 58) for "sexual or violent offenders". A similar provision was devised for Scotland. The court was given a discretion to impose a period of post release licence in respect of any sex offender convicted on indictment and any person convicted of a violent offence for which the court intended to impose a custodial term of 4 years or more. The extension period could be up to 10 years for a sex offender and 5 years for a violent one (3 years in the sheriff court). For present purposes, the significant features are that the imposition of an extended sentence is discretionary ("may"; s 210A(1)) and it can be selected if the court:
"210A(1)(b) considers that the period (if any) for which the offender would, apart from this section, be subject to a licence would not be adequate for the purpose of protecting the public from serious harm from the offender".
The use of the words "serious harm" is identical to that for a SRO. The practical utility of the extended sentence was (and is) to allow the court to increase the period during which the offender may otherwise have been on parole, and thus subject to supervision, with the prospect of his licence being recalled.
[5] That then is the background against which the MacLean Committee took up the challenge. This Committee, which reported in June 2000, had as its remit:
"... to make proposals for the sentencing disposals for, and the future management and treatment of serious violent and sexual offenders who may present a continuing danger to the public in particular:
... whether the current legislative framework ... provides the courts with an appropriate range of options and affords the general public adequate protection from these offenders..." (Report p 1).
The Committee adopted an offender-focussed approach, whereby the gravity of the offence was only one factor to be taken into account in the assessment of any future risk to the public. They considered that they should concentrate on "those who may present a particularly high risk" (para 1.8). Thus, it was recommended that:
"Special sentencing considerations are necessary for persons convicted on indictment of a violent or sexual offence, or exceptionally another category of crime, whose offence(s) or antecedents or personal characteristics indicate that they are likely to present particularly high risks to the safety of the public. We refer to them henceforward, in the context of this report, as 'high risk offenders'" (Recommendation 1).
[6] The Committee expressed the view that:
"... while for many such offenders [ie those offenders within the Committee's remit] the present range [of custodial disposals] is satisfactory, for a small number of others the current sentencing provisions are deficient since they do not require the courts to impose on exceptional individuals an exceptional sentence which both marks the gravity of what they have done and provides an appropriate level of public protection, having regard to the risk that such individuals pose" (para 5.1, emphasis in original).
On that basis, the Committee proposed that:
"For this latter group of offenders ... [a] new and separate provision requires to be made so that ... they are subject to the control of the State for the remainder of their lives" (ibid).
[7] The Committee recommended (Recommendation 12) that legislative provision should be made "for the lifetime control of serious violent and sexual offenders who present a high and continuing risk to the public"; that is, the "order for lifelong restriction" (OLR). Although the Committee recommended that only the High Court could impose an OLR, they did consider that such imposition could be in respect of a relatively minor offence, when coupled with past behaviour, and thus remits from the Sheriff to the High Court for the purpose of imposing an OLR must have been in contemplation.
[8] The Committee explained that:
"The OLR is intended for cases where the offender presents a serious risk to the public, and the Court should only impose this sentence if it is satisfied that there are reasonable grounds for believing that the offender presents a substantial and continuing risk" (para 6.5).
This test is reflected, albeit not in identical terms, in the Committee's recommendation (Recommendation 17) that an OLR may only be imposed where:
"...the offender presents a substantial and continuing risk to the safety of the public such as requires his lifelong restriction".
Having also observed that OLRs were intended to address "fundamental concerns when dealing with offenders who present a high and enduring risk" (para 4.7) and to meet the needs of "the very high risk" group of offenders concerned (para 9.6), it is clear that the Committee's use of language cannot be relied upon for the formulation of a precise test for the level of risk justifying the imposition of an OLR. Ultimately, notwithstanding the Committee's reference to the "legal test" (Chapter 6(i)) for imposing OLRs, no clear test can be derived from the terms of the Report. The Committee anticipated, however, that, upon adoption of the proposals to introduce OLRs:
"... the extended sentence will be an important bridge between the new disposal and the normal determinate sentence, in cases where the proposed statutory criteria for the new disposal are not met" (para 4.33).
Thus, the extended sentence was not envisaged to be an alternative disposal where the statutory criteria for the imposition of an OLR were met.
[9] The Executive (as it then was) produced a White Paper (Serious Violent and Sexual Offenders, 2001) noting the MacLean Committee's use of terminology such as "high risk" and "high risk offenders" and observing that:
"The [MacLean] Report started by identifying problems with the current system of sentencing and managing high risk offenders, specifically that:
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