John Locke V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice General,Lord Macfadyen,Lady Paton |
| Neutral Citation | [2008] HCJAC 6 |
| Court | High Court of Justiciary |
| Date | 01 February 2008 |
| Docket Number | XC1012/03 |
| Published date | 01 February 2008 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Macfadyen Lady Paton | [2008] HCJAC 6 Appeal No: XC1012/03 OPINION OF THE LORD JUSTICE GENERAL in APPEAL by JOHN LOCKE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Shead, Mason; Gillespie McAndrew, Edinburgh (Appellant)
Alt: Wolffe, Q.C., A.D.; Crown Agent
1 February 2008
Introduction
[1] On 4 August 1998 the appellant was convicted after trial in the High Court at Inverness of the rape of a fifteen year old girl (charge (2) on the indictment). He was also convicted of the theft of a handbag. He had previously been convicted of rape on two occasions: on 14 November 1983 he was sentenced to three years' imprisonment for that crime and on 25 March 1988 was sentenced to fifteen years' imprisonment for the rape of a sixteen year old girl. The crime of which he stood convicted on 4 August 1998 was committed on 2 April 1998, within three months of the appellant having been released after serving ten years of his previous term of imprisonment. On 2 April 1998 the appellant was forty-one years of age. In addition to his previous convictions for rape, he had also previously been convicted of other crimes of violence: in 1976 he had been sentenced to twelve months in a Young Offenders Institution for assault to severe injury and in 1984 to three years' imprisonment for robbery. The trial judge imposed on the appellant a cumulo sentence of life imprisonment and, in terms of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as then amended), fixed the "designated part" of the sentence at fifteen years.
[2] Several years after his conviction and sentence the appellant lodged an appeal in respect of the designated part of that sentence. The only ground of appeal was that there had been a miscarriage of justice -
"in that the designated part of 15 years is excessive having regard to the matters which the learned trial judge was required to take into account in terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993, Section 2, and the failure of the learned trial judge to take into account the early release provisions of Section 1 of the said Act in the calculation of the said designated part."
On 17 February 2004 he was granted leave to appeal on that ground.
[3] In his report to this court the trial judge states:
"I fixed the appropriate period at 15 years in light of the appellant's previous convictions especially those of 14 November 1983 and 25 March 1998 (sic). I also found it of significance that the appellant had only been released in respect of the last sentence, some 3 months before the commission of the present offence. As far as I am aware I took all the relevant statutory provisions into account."
The legislation
[4] As at August 1998 the 1993 Act (as amended by the Crime and Punishment (Scotland) Act 1997) provided:
"1(1) As soon as a short-term prisoner has served one-half of his sentence the Secretary of State shall, without prejudice to any supervised release order to which the prisoner is subject, release him unconditionally.
(2) As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him on licence.
(3) After a long-term prisoner has served one-half of his sentence the Secretary of State may, if recommended to do so by the Parole Board under this section, release him on licence.
...
2(1) In this Part of this Act 'designated life prisoner', ... except where the context otherwise requires, means a person -
(a) sentenced to life imprisonment for an offence for which,
subject to paragraph (b) below, such a sentence is not the sentence fixed by law;
(b) whose sentence was imposed under section 205A(2) of the
1995 Act (imprisonment for life on further conviction for certain offences); or
(c) whose sentence was imposed in respect of a murder committed
by him before he attained the age of 18 years,
and in respect of whom the court which sentenced him for that offence made the 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 designated life prisoner as soon as he has served such part of his sentence ('the designated 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;
(b) any previous conviction of the designated life prisoner; and
(c) where appropriate, the matters mentioned in paragraphs (a)
and (b) of section 196(1) of the 1995 Act.
(3) Where a court which imposes life imprisonment for an offence such as is mentioned in subsection (1) above decides not to make such an order as is mentioned in subsection (2) above, it shall state its reasons for so deciding; and for the purposes of any appeal or review, any such order and any such decision shall each constitute part of a person's sentence within the meaning of the 1975 Act.
(4) Where this subsection applies, the Secretary of State shall, if directed to do so by the Parole Board, release a designated life prisoner on licence.
(5) The Parole Board shall not give a direction under subsection (4) above unless -
(a) the Secretary of State has 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, a discretionary life prisoner may [subject to certain exceptions] at any time require the Secretary of State to refer his case to the Parole Board.
...".
[5] On 9 March 1999 this court gave judgment in O'Neill v HM Advocate 1999 SCCR 300. It will be necessary in due course to return to that case. At this stage it is sufficient to note that the court there gave guidance to sentencers as to the approach which they should adopt in fixing the designated part of a life sentence.
[6] The 1993 Act was, with effect from 27 July 2001, further amended by the Convention Rights (Compliance)(Scotland) Act 2001. As so amended, the 1993 Act provided:
"1(1) ... as soon as a short-term prisoner ... has served one-half of his sentence the Secretary of State shall, without prejudice to any supervised release order to which the prisoner is subject, release him unconditionally.
(2) As soon as a long-term prisoner has served two-thirds of his sentence, the Secretary of State shall release him on licence unless he has before that time been so released, in relation to that sentence, under any provision of this Act.
(3) After a long-term prisoner has served one-half of his sentence the Secretary of State -
(a) shall, ...
...
if recommended to do so by the Parole Board under this section, release him on licence.
2(1) In this Part of this Act 'life prisoner', except where the context otherwise requires, means a person -
(a) sentenced to life imprisonment for an offence for which,
subject to paragraph (b) below, such a sentence is not the sentence fixed by law; or
(aa) sentenced to life imprisonment for murder or for any other
offence for which that sentence is the sentence fixed by law; or
(b) whose sentence was imposed under section 205A(2) of the
1995 Act (imprisonment for life on further conviction for certain offences),
and in respect of whom the court which sentenced him for that offence made the 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;
(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 the 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) where appropriate, the matters mentioned in paragraphs (a) and
(b) of section 196(1) of the 1995 Act."
Subsections (3), (4), (5) and (6) were, with certain modifications, in the same terms as in the Act as amended by the 1997 Act. Subsequent amendments, including provisions in respect of orders for lifelong restriction, have been made but are irrelevant for present purposes.
[7] Section 4 of the 2001 Act provided that Parts 1 to 5 of the schedule to that Act should have effect for the purpose of making transitional provision in connection with sections 1 to 3. Part 1 of the schedule, in so far as material, provided:
"2 In this Part of this schedule-
'life prisoner' has the same meaning as it has in section 27(1) as read with section 6 of the 1993 Act [a person serving a sentence of imprisonment for life, including young offenders and children detained without limit of time].
'punishment part' has the same meaning as it has in section 2(2) of the 1993 Act".
Part 2 of the schedule provided:
"27 This Part of this...
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