Her Majesty's Advocate V. Bryan Robert Boyle+greig Maddock+robert Kelly
| Jurisdiction | Scotland |
| Judge | Lord Clarke,Lord Justice General,Lord Mackay of Drumadoon,Lady Dorrian,Lord Reed |
| Judgment Date | 26 November 2009 |
| Neutral Citation | [2009] HCJAC 89 |
| Published date | 26 November 2009 |
| Date | 26 November 2009 |
| Court | High Court of Justiciary |
| Docket Number | 4/11 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Reed Lord Clarke Lord Mackay of Drumadoon Lady Dorrian
| [2009] HCJAC 89 Appeal Nos: XC614/07, XC615/07 and XC654/07 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL by HER MAJESTY'S ADVOCATE Appellant; against BRIAN ROBERT BOYLE First Respondent; GREIG MADDOCK Second Respondent; and ROBERT KELLY Third Respondent: _______ |
Appellant: Lord Advocate, G Balfour; Crown Agent
First Respondent: Sudjic, Hay, Solicitor Advocates; Martin Johnston and Socha, Glenrothes
Second Respondent: Ferguson, Q.C., Niven-Smith; Dewar Spence, Leven
Third Respondent: Macara, Considine, Solicitor Advocates; Fitzpatrick & Co., Glasgow
26 November 2009
The penalty for murder
[1] Of all crimes in Scotland murder is the most heinous. It is constituted by any wilful act causing the destruction of human life, by which the perpetrator either wickedly intends to kill or displays wicked recklessness as to whether his victim lives or dies (Drury v HM Advocate 2001 S.C.C.R. 583). The mandatory penalty for murder is imprisonment (or, in the case of young persons) detention) for life.
[2] Section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as amended) provides:
"(1) In this part of this Act 'life prisoner', except where the context otherwise requires, means a person -
...
(aa) sentenced to life imprisonment for murder ...
...
and in respect of whom the court which sentenced him for that offence made an order mentioned in subsection (2) below.
(2) 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;
...
(b) any previous conviction of the life prisoner; and
(c) where appropriate, the matters referred to in paragraphs (a) and (b) of section 196(1) of the 1995 Act.
(3) A court which imposes life imprisonment for an offence such as is mentioned in subsection (1) above ... shall make such order as is mentioned in subsection (2) above and such order shall constitute part of a person's sentence within the meaning of the 1995 Act for the purposes of any appeal or review.
(3A) An order such as is mentioned in subsection (2) above -
(a) shall specify the period that the court considers appropriate under that subsection in years and months; and
(b) may specify any such period of years and months notwithstanding the likelihood that such a period will exceed the remainder of the prisoner's natural life.
(4) Where this subsection applies, the [Scottish Ministers] shall, if directed to do so by the Parole Board, release a life prisoner on licence.
(5) The Parole Board shall not give a direction under subsection (4) above unless -
(a) the [Scottish Ministers have] referred the prisoner's case to the Board; and
(b) the Board is satisfied that it is no longer necessary for the protection of the public that the prisoner should be confined.
...
(6) Where this subsection applies, the life prisoner may ... require the [Scottish Ministers] to refer his case to the Parole Board."
[3] Section 196(1) of the "1995 Act" (the Criminal Procedure (Scotland) Act 1995) provides:
"In determining what sentence to pass on, or what other disposal or order to make in relation to, an offender who has pled guilty to an offence, a court shall take into account -
(a) the stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and
(b) the circumstances in which that indication was given."
The convictions
[4] The first and second respondents were on 1 June 2007 each convicted after trial of the murder of Robert Bowie on 14 October 2006. The terms on which they were respectively convicted were different. The first respondent was convicted as charged that at an address in Dunfermline he "did assault [Mr Bowie] and repeatedly strike him on the head with a bottle, repeatedly kick and stamp on his head, drag him down a set of stairs, stab him on the leg with a knife, strike him with a pole, pour accelerant over him and set fire to same, set fire to magazines and debris all to his severe injury, permanent disfigurement and permanent impairment and as a consequence thereof he died of said injuries on 19 October 2006 at St John's Hospital, Livingston and you did murder him". The second respondent was convicted on the same charge but under deletion of the words "repeatedly strike him on the head with a bottle, repeatedly kick and stamp on his head, drag him down a set of stairs, stab him on the leg with a knife, strike him with a pole". The first respondent was on 19 July 2007, he then being 19 years of age, sentenced to be detained for life and an order made under section 2(2) of the 1993 Act (as amended) that he serve a period of fifteen years before subsections 2(4) and (6) should apply. On the same date the trial judge sentenced the second respondent, who was then 21 years of age, to be imprisoned for life and made an order under section 2(2) that he serve a period of twelve years before subsections 2(4) and (6) should apply. At the date of the murder the first and second respondents were 18 and 20 years of age respectively.
[5] The third respondent on 25 May 2007 pled guilty before a different judge to the murder on 30 August 2002 of Mrs Agnes Mechen, then aged 64. The charge to which he pled was that he "did assault [Mrs Mechen] and did seize her by the body, struggle with her, place a cord around her neck and tighten same, rob her of a handbag, the contents thereof and a quantity of money and you did murder her and you did previously evince malice and ill-will towards [Mrs Mechen]." On 25 July 2007 the judge sentenced him to life imprisonment and ordered that a period of fifteen years be served before subsections 2(4) and (6) of the 1993 Act (as amended) should apply. The plea of guilty had been tendered at the first preliminary hearing. The judge stated on sentencing that, but for that plea, the punishment part would have been twenty years. At the date of the offence the third respondent was 27 years of age, at the time of sentencing 32.
[6] The Lord Advocate has appealed under section 108 of the 1995 Act against the punishment parts in each of these sentences on the ground that the disposal in each case was "unduly lenient". She has also sought to make use of the opportunity presented by these appeals to invite this court to give guidance under section 118(7) of the 1995 Act on punishment parts in murder cases. Because of the potential importance of the issues arising and because reconsideration might require to be given to certain views expressed by three-judge benches, a bench of five judges was convened for the purpose of hearing these appeals.
Punishment parts - discussion
[7] Section 2 of the 1993 Act (as amended) prescribes no minimum or maximum for the period of a punishment part. All that it prescribes is that the period must be specified in years and months (subsection (3A)(a)). Subsection (3A)(b) makes it plain that the specified period may exceed the likely extent of the remainder of the prisoner's natural life. Thus, while the statute does not empower the judge to specify a "whole life" period, in an appropriate case a prisoner in Scotland may be sentenced to a period which in practical terms will extend until his or her death.
[8] In Walker v HM Advocate 2002 S.C.C.R. 1036 the appellant appealed against a punishment part specified by the sentencing judge (Lord Reed). The appellant had deliberately planned the robbery and murder by machine gun of three serving soldiers. In his report Lord Reed observed:
"Bearing in mind that the appropriate punishment part in the present case had, in my view, to be substantially in excess of 20 years, and taking account of the periods imposed in the cases which I have mentioned [Robert Francis Mone and Howard Charles Wilson], I reached the conclusion, albeit with hesitation, that the extreme end of the scale must be about 30 years, and that a period of that length was justified in the present case."
In allowing the appeal and substituting a punishment part of twenty seven years, the court said:
"[8] In the absence of significant mitigation most cases of murder would, in our view, attract a punishment part of 12 years or more, depending on the presence of one or more aggravating features. In the individual case account has also to be taken of the seriousness of the offence combined with other offences of which the accused has been convicted on the same indictment, along with any previous convictions of the accused, in accordance with the terms of section 2(2) of the 1993 Act, as amended, to which we have referred. As the sentencing judge suggests in his report in the present case a number of murder cases might be of such gravity - for example where the victim was a child or a police officer acting in the execution of his duty, or where a firearm was used - that the punishment part should be fixed in the region of 20 years. However, there are cases - which may be relatively few in number - in which the punishment part would have to be substantially in excess of 20 years.
[9] We are in no doubt that in the present case the factors...
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