Her Majesty's Advocate V. Morris Petch+robert Foye
| Jurisdiction | Scotland |
| Judge | Lord Osborne,Lord Eassie,Lord Clarke,Lord Justice General,Lord Wheatley,Lord Emslie |
| Judgment Date | 01 March 2011 |
| Neutral Citation | [2011] HCJAC 20 |
| Court | High Court of Justiciary |
| Published date | 01 March 2011 |
| Docket Number | XC663/07 |
| Date | 01 March 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice General Lord Osborne Lord Eassie Lord Clarke Lord Emslie Lord Wheatley Lord Philip | [2011] HCJAC 20 Appeal Nos: XC663/07 and XC640/08 OPINION OF THE LORD JUSTICE GENERAL in APPEALS by MORRIS PETCH Appellant; against HER MAJESTY'S ADVOCATE Respondent; and ROBERT FOYE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant (Petch): Shead, Prais; Gillespie Macandrew
Appellant (Foye): Shead, Mason; Drummond Miller
Respondent: Cherry, Q.C., A.D., Devaney; Crown Agent
1 March 2011
The issue
[1] The issue of principle which arises for decision at this stage in each of these appeals is the proper approach to the determination of the punishment part to be specified, under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 (as amended), in respect of non-mandatory indeterminate sentences (discretionary life sentences and orders for lifelong restriction).
[2] Section 2 of the Act (as amended) provides:
"(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
(ab) who is subject to an order for lifelong restriction in respect of an offence,
...
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) or (ab) 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, or as the case may be not made the order for lifelong restriction, 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.
...
(4) Where this subsection applies, the Secretary of State 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 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 life prisoner may, subject to subsection (7) below, require the Secretary of State to refer his case to the Parole Board."
Introduction
[3] On 8 January 2010, this court remitted the present appeals to a bench of seven judges. In doing so, it issued an Opinion which suggested that the approach adopted in Ansari v HM Advocate 2003 JC 105 to the determination of the punishment part of non-mandatory indeterminate sentences to be specified under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 as amended ("the 1993 Act") might have to be reconsidered.
Background
[4] On 24 May 2007, at the High Court in Edinburgh, the first-named appellant, Morris Petch, was convicted after trial on two charges of rape involving girls aged between 8 and 11 years. On 10 August 2007 he was sentenced to life imprisonment. The punishment part of that sentence was specified as twelve years. The sentencing judge took the view that, in all the circumstances including a previous conviction in the High Court for assault with intent to ravish for which imprisonment for 30 months had been imposed, the notional determinate sentence which might have been imposed for such an offence, regard being had to retribution and deterrence alone, would have been in the region of 18 years. On 23 January 2008, at the High Court in Glasgow, on an indictment under section 76 of the Criminal Procedure (Scotland) Act 1995 ("the 1995 Act"), the second-named appellant, Robert Foye, pled guilty to the assault to injury and rape of a sixteen year old girl. On 1 October 2008, in terms of section 210F of the1995 Act, he was made the subject of a lifelong restriction order. The punishment part of that sentence was specified as nine years. The sentencing judge took the view that, in all the circumstances, including the plea of guilty, the notional determinate sentence which might have been imposed for the offence would have been 13 years. Against those sentences, both appellants now appeal.
Submissions on behalf of the appellants
[5] On behalf of both appellants, Mr Shead submitted that Ansari had been wrongly decided. The majority had misinterpreted section 2(2)(aa) of the 1993 Act, which had simply given the procedure outlined in O'Neill v HM Advocate 1999 SCCR 300 statutory force. O'Neill had to be taken into account when interpreting it. The section involved the hypothetical legal construct of the "notional determinate sentence", not a real exercise of "second guessing" the Parole Board (cf Ansari, per Lord Justice Clerk Gill at paras 32 - 40; Lord Marnoch at para 45). The correct approach was to identify the custodial period which would be appropriate purely as punishment for the crime, ignoring risk, and, in all but exceptional cases, specify one-half of that period as the punishment part (O'Neill, per Lord Justice General Rodger at para 308). The reasoning of Lord Reed in his dissenting Opinion in Ansari ought to be accepted as correct. That approach ensured comparative justice between a discretionary life prisoner and a prisoner sentenced to a determinate sentence as regards the stage at which they respectively might be considered for early release under section 1 of the 1993 Act (Ansari, per Lord Reed at paras 69 and 88).
[6] The decision in O'Neill had been influenced by the approach adopted in England, where the proportion of the notional determinate term to be served as part of an indeterminate sentence was normally one-half (R v M (Discretionary Life Sentence) [1999] 1 WLR 485, per Thomas J at page 491; R v Szczerba [2002] 2 Cr App R (S) 86, per Rose LJ at para 31; R v Wilson [2010] 1 Cr App R (S) 11, per Judge CJ at para 19). The statutory provisions in that jurisdiction were not materially different from the 1993 Act as amended (cf Ansari, per Lord Justice Clerk Gill at para 25). One rationale for fixing the punishment part at one-half, as opposed to two-thirds, of the notional determinate sentence was the "peculiarly disadvantaged" position in which a life sentence prisoner was placed (R v M (Discretionary Life Sentence), per Thomas J at pages 490-491, referring to R v Secretary of State for the Home Department, ex parte Furber [1998] 1 All ER 23, per Simon Brown LJ at pages 28-29).
[7] The majority in Ansari had also erred in their interpretation of Rule 8 of the Parole Board (Scotland) Rules 2001. In considering the early release of a discretionary life prisoner, the Parole Board in Scotland was, in practice, only concerned with the protection of the public and whether a prisoner presented an acceptable risk (Laidlaw v HM Advocate 2008 SCLR 51, per Lord McEwan at paras [32]-[33]). That was reflected in the statutory provisions (1993 Act, section 2(4) and (5)). The rules provided a non-exhaustive guide of matters which could be taken into account, but only in the context of that overarching question of risk (Ansari per Lord Reed at para 77; cf Lord Justice Clerk Gill at para 32).
[8] If section 2(2)(aa) was considered ambiguous, resort could be made to a statement made by the Deputy First Minister and Minister for Justice (Mr Jim Wallace) at Stage 3 of the Convention Rights (Compliance) (Scotland) Bill, which introduced the provision (Scottish Parliament, Official Report, 30 May 2001, columns 1090-1091; cf Pepper v Hart [1993] AC 593). That made clear Parliament's intention to preserve the approach adopted in O'Neill. A purposive approach ought to be adopted to give effect to that intention. Moreover, the 1993 Act had to be interpreted in a manner which respected the appellants' Convention rights (Human Rights Act 1998, section 3). If it discriminated, without justification, against the appellants as regards the applicability of the statutory early release provisions, it would amount to a contravention of their rights under Articles 5 and 6 when considered in conjunction with Article 14 (Clift v United Kingdom, unreported, Application No. 7205/07, 13 July 2010, European Court of Human Rights, 4th section). That would be an odd result where the Act was designed to protect Convention rights (cf Flynn v HM Advocate 2005 1 JC 271, per Lord Justice Clerk Gill at para [5]).
Submissions on behalf of the Crown
[9] The Advocate depute submitted that, while O'Neill formed part of the background to the...
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