R v Trevor McCandless, Stephen Anthony Johnston, Paul James Johnston, Samuel Anderson, Kenneth John Scott
| Jurisdiction | Northern Ireland |
| Judge | Carswell LCJ |
| Judgment Date | 2004 |
| Neutral Citation | [2004] NICA 1 |
| Court | Court of Appeal (Northern Ireland) |
| Date | 09 January 2004 |
1
Neutral Citation no [2004] NICA 1
Ref:
CARF4076
Judgment: approved by the Court for handing down
Delivered:
9/1/04
(subject to editorial corrections)
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
_____
THE QUEEN
v
TREVOR McCANDLESS
_____
THE QUEEN
v
STEPHEN ANTHONY JOHNSTON
_____
THE QUEEN
v
PAUL JAMES JOHNSTON
_____
THE QUEEN
v
SAMUEL ANDERSON
_____
THE QUEEN
v
KENNETH JOHN SCOTT
_____
Before: Carswell LCJ, Nicholson LJ and Kerr J
_____
2
CARSWELL LCJ
[1] The matters before the court consist of two appeals against sentence and
three applications for leave to appeal against sentence. Each of the appellants
and applicants was sentenced to imprisonment for life and an order was
made by the court in each case under Article 5 of the Life Sentences (Northern
Ireland) Order 2001 (the 2001 Order) fixing the minimum term which the
offender was to serve before the release provisions were to apply to him. In
the case of one of the offenders, Kenneth John Scott, the court imposed a
discretionary life sentence, and in the case of the other four, each of whom
was convicted of murder, the life sentence was mandatory. Each has
submitted to the court that the term fixed was manifestly excessive and
should be reduced. We ordered that these appeals and applications should be
heard together, so that we could review the level of sentencing in life sentence
cases and determine the principles upon which sentencers should act when
fixing minimum terms.
[2] When a defendant in a criminal matter is sentenced to imprisonment for
life, that does not in practice mean that he will be detained for the whole of
the rest of his life, save in a few very exceptional cases. He will ordinarily be
released after a period has elapsed which is regarded as appropriate to reflect
the elements of retribution and deterrence, provided it is no longer necessary
for the protection of the public to detain him. The factual background of
murder cases is infinitely variable and the culpability of individual offenders
covers a very wide spectrum. Reflecting this variation, the terms for which
persons convicted of murder have actually been detained in custody have
accordingly varied from a relatively few years to very long periods, even
enduring in a few cases to the rest of the offender’s life. The statutory
provisions and practice relating to the fixing of minimum terms have changed
very rapidly over the last few years, largely to reflect the requirements of the
European Convention on Human Rights as interpreted by the European
Court of Human Rights in their decisions.
[3] Before the 2001 Order came into force the date of release of a prisoner
serving a life sentence in Northern Ireland was determined by the Secretary of
State. He consulted the Lord Chief Justice and the trial judge, if the latter was
available, pursuant to the provisions of section 1(3) of the Northern Ireland
(Emergency Provisions) Act 1973, and they advised him about the length of
term appropriate for retribution and deterrence. He was also advised by an
extra-statutory body known as the Life Sentence Review Board on the issue of
safety of release, and made his decision on the basis of this consultation and
advice. This corresponded to some extent with the practice in England and
Wales, in which the trial judge and the Lord Chief Justice sent their
recommendations for a minimum term shortly after trial to the Home
Secretary and he took them into account in fixing a minimum term, then
commonly known as the “tariff”.
3
[4] The 2001 Order now provides for the fixing by the trial court of the
minimum term which a prisoner sentenced to imprisonment for life must
serve before he is considered by the Life Sentence Review Commissioners for
release from prison. The material portions for present purposes are
paragraphs (1) and (2):
“5. - (1) Where a court passes a life sentence, the court
shall, unless it makes an order under paragraph (3),
order that the release provisions shall apply to the
offender in relation to whom the sentence has been
passed as soon as he has served the part of his
sentence which is specified in the order.
(2) The part of a sentence specified in an order
under paragraph (1) shall be such part as the court
considers appropriate to satisfy the requirements of
retribution and deterrence having regard to the
seriousness of the offence, or of the combination of
the offence and one or more offences associated with
it.”
Paragraph (3) deals with “whole life tariffs”, where the court considers that
the offender should be detained for the remainder of his life and so does not
set a minimum term. We need not consider these in the present judgment.
When the minimum term has elapsed (or in practice shortly before it is
completed) the Secretary of State refers the prisoner’s case to the
Commissioners under Article 6 of the 2001 Order. By Article 6(4)(b) the
Commissioners must be satisfied that it is no longer necessary for the
protection of the public that the prisoner should be confined, and if they are
so satisfied they will then direct his release, pursuant to Article 6(3)(b),
whereupon it is the duty of the Secretary of State to release him. We are
satisfied that an appeal lies to this court under section 8 of the Criminal
Appeal (Northern Ireland) Act 1980 against the judge’s decision fixing the
length of the minimum term. Such a decision in our opinion constitutes a
sentence within the meaning of that section, since it is determined by the
court and not the Secretary of State and the length of the term so determined
is not fixed by law. This is sufficient to distinguish such decisions from
recommendations made by trial judges under the procedure formerly
obtaining, as to which see R v Aitken [1966] 2 All ER 453.
[5] Following the decision of the ECtHR in T v UK (2000) 30 EHRR 121, it
was provided by section 82A of the Powers of Criminal Courts (Sentencing)
Act 2000 that minimum terms in the case of juveniles sentenced to be detained
during Her Majesty’s Pleasure (the equivalent of a life sentence in the case of
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