Patrick Anthony Flynn and Others v HM Advocate
| Jurisdiction | UK Non-devolved |
| Judge | Lord Bingham of Cornhill,Lord Hope of Craighead,Lord Rodger of Earlsferry,Baroness Hale of Richmond,Lord Carswell |
| Judgment Date | 18 March 2004 |
| Neutral Citation | [2004] UKPC D1 |
| Court | Privy Council |
| Docket Number | DRA. Nos. 1, 2 3 and 4 of 2003,No 1 |
| Date | 18 March 2004 |
[2004] UKPC D1
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Carswell
Since the abolition of the death penalty for murder in 1965, judges in the three United Kingdom jurisdictions have been required to impose a sentence of life imprisonment on adults convicted of murder. This sentence has been understood, intended and treated as a maximum: it has not, save in a very small minority of cases, represented the term for which the defendant was intended to be or has in practice been imprisoned. Thus it has been necessary to develop procedures for deciding how long a prisoner should remain in prison as punishment for the crime he has committed, and also for deciding whether and when it is safe to release him. These procedures have evolved considerably over the years since 1965, and the practice within the three jurisdictions has to some extent varied.
My noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry have described the procedure followed in Scotland before the enactment by the Scottish Parliament of the Convention Rights (Compliance) (Scotland) Act 2001 and have summarised the effect of that Act so far as relevant to the devolution issue now before the Board. I gratefully adopt and need not repeat their accounts. The question which now arises is whether section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by the 2001 Act, and Part I of the Schedule to the 2001 Act are incompatible with the Convention rights of the appellants, since if they are the Scottish Parliament had no competence to enact these provisions and they are not law: Scotland Act 1998, section 29(1),(2)(d).
The procedure adopted in Scotland before enactment of the 2001 Act was subject to three weaknesses. First, and most importantly, it allocated to a minister, a member of the executive, the all-important function of deciding how long a prisoner should be detained in prison as punishment for his crime. This he did, first, by deciding when a case should be referred to the Parole Board and, secondly, by deciding whether to accept a Parole Board recommendation that a prisoner be released. Since those functions, however described, are sentencing functions, since the passing of sentence is part of a criminal trial, since a criminal trial must be conducted in public by an independent and impartial tribunal and since a minister is not such a tribunal, this procedure plainly violated the prisoner's rights under article 6 of the Convention. Secondly, save on the infrequent occasions when the trial judge exercised his power to recommend a minimum period of custody before parole was considered (a power exercised in no more than a minority of cases), a prisoner received on conviction no official indication of the term he might be required to serve as punishment for his crime. Thus he was left in a state of uncertainty: he could not know when his fitness for release on grounds of risk might come to be considered. Thirdly, the procedure provided for assessment of a prisoner's fitness for release on grounds of risk before a decision was made on whether he had served a term long enough to punish him for his crime. No doubt the procedure worked reasonably well in practice, and it was rare for the judges to advise that further detention was necessary for punitive purposes when consulted after the Parole Board's decision that a prisoner could safely be released. But it would have been more logical to decide how long a prisoner should be detained for punitive purposes and then, at or towards the end of that period, to decide whether the prisoner could safely be released.
The regime introduced by the 2001 Act addressed all three of these weaknesses. The punitive term (or punishment part) of the life sentence was to be imposed by the trial judge in open court following conviction, like any other sentence, and would be subject to appeal like any other sentence. The prisoner would know from the outset when he could expect to be released if it were judged safe to release him. The prisoner's progress through the prison system would be so managed that, as the end of his punitive term approached, his fitness for release could be assessed with a view to releasing him at the end of that term if it were judged safe to do so.
Underlying the prescient and well-devised scheme of the 2001 Act was the overriding objective of introducing a regime which would respect the Convention rights of defendants tried for murder in Scotland. The legislation was indeed prompted by recognition that the first weakness identified above involved an obvious breach of the Convention rights of such defendants, as made clear by the title of the Act and the Policy Memorandum which was issued when the Convention Rights (Compliance) (Scotland) Bill was introduced. The new regime was intended to be fully compliant and thus to preclude any possibility of successful challenge on Convention grounds. Provision had however to be made for adult mandatory life prisoners previously sentenced under the old procedures now to be superseded. Here the intention was clear: in the cases of those adults already serving mandatory life sentences, the new procedures were to act neutrally, neither lengthening nor shortening the terms which such prisoners would otherwise have served. This intention was expressly stated in the Policy Memorandum. It was also reflected in the special provision made for those prisoners who had been officially notified of their provisional release dates. It would doubtless have been thought unfair to change the rules to the disadvantage of a serving prisoner, perhaps years after a crime was committed. Such retrospective penalisation might well have been thought to offend the spirit of article 7 of the Convention, whether or not it offended the letter.
It is unnecessary to repeat the summary given by Lord Hope of the stage of his sentence which each of the appellants had reached when his proceedings were brought. It is evident that none of them had as firm an expectation of early release as a prisoner with a provisional release date. But each of them, having been notified of a date on which his case would be considered (or reconsidered) by the Parole Board, was in a much more favourable position than a prisoner to whom no such date had been given: each of the appellants could hope, realistically, that he might be considered safe to release when his case was next considered by the Parole Board and that, if he were, the period of detention already undergone would be considered long enough for punitive purposes. At worst, he could reasonably hope to move a stage further towards release. It would plainly offend the principle of neutrality on which the transitional provisions were based if the new procedures were to operate in any significant way to the disadvantage of prisoners in the position of the appellants.
If I were persuaded that section 2 of the 1993 Act as amended and Part I of the Schedule to the 2001 Act, properly interpreted, precluded the High Court, when specifying the punishment part of the life sentence to be served by each of the appellants, from taking account of and giving appropriate weight to the Parole Board hearing dates formally notified to them respectively, I should have grave doubts whether a breach of article 7 of the Convention was not involved. But paragraph 14 of the Schedule permits account to be taken of some events occurring after the notional date of original sentence, as Lord Hope and Lord Rodger have shown, so the provisions cannot be read as absolutely prohibiting consideration of such events. It is further evident that such an absolute prohibition would, or certainly might, infringe the principle of neutrality in cases such as the appellants'; and it would be contrary to ordinary notions of fairness to deny to a serving prisoner the benefit of such officially-recognised progress as he had made towards release. None of this can the Scottish Parliament have intended. The wording of paragraph 13 of the Schedule is, in my opinion, intended to protect a serving adult mandatory life prisoner against any general inflation in the length of prison terms which may have occurred since the date of his original sentence, but not to deny him the benefit of considerations, favourable to him, of which a fair and rational sentencer would wish to take account.
This reading of Part I of the Schedule does not treat a Parole Board hearing date as if it were a provisional release date. On the Parole Board hearing date, the possibility remains that it may not be thought safe to release a prisoner; and even if it was in the past thought safe to release a prisoner it was often the practice, under the pre-2001 procedure, for prisoners to be required to prove themselves in open conditions over a period of about two years before release. The appellants cannot rely on the new procedures to improve their position, but they are entitled to claim that they should not be prejudiced. This is a claim to which due effect may be given when their appeals against sentence are heard.
For reasons given by my noble and learned friend Lord Rodger, I am satisfied that none of the appellants' arguments based on article 5, 6, 14, 17 and 53 of the Convention can be accepted.
In my opinion, the appellants' challenge to the compatibility of Part I of the Schedule to the 2001 Act with the Convention fails, and their appeals must be dismissed.
The issue in these appeals is whether...
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