MORRIS PETCH & ROBERT FOYE v HMA

In these appeals against sentence the Appeal Court has called for a clear, well considered legislative solution for determining the punishment part in discretionary life sentences and orders for lifelong restriction.

In this case a court of seven judges has required to examine the approach which should be taken to the identification of the punishment part to be specified when a prisoner is sentenced, on a discretionary basis, to life imprisonment or when an order for lifelong restriction is made.  The punishment part is the period which a life prisoner must serve in custody before he can first be considered for release on licence. These cases are not concerned with the punishment part where a prisoner is convicted of murder and is sentenced, mandatorily, to life imprisonment.

The issue, ultimately, was the interpretation of section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act, as amended by Convention Rights (Compliance) (Scotland) Act 2001.  That subsection (as so amended) gives rise to a number of difficulties of interpretation, not least as to the appropriate comparative exercise which requires to be carried out between the position of a life prisoner on the one hand and a prisoner sentenced to a determinate (fixed) number of years on the other.  Differences of opinion have emerged among the judges as to the appropriate approach to that exercise. 

A majority has decided that the effect of the statute is to require the court to follow the general approach approved by it in an earlier case (O’Neill v HM Advocate 1999 SCCR 300) – notwithstanding that, at least in some cases, this may have the apparently anomalous result that a prisoner sentenced to life imprisonment may become eligible for consideration for parole at an earlier stage than a prisoner sentenced to a determinate term for a like crime.  The minority takes the view that the statute, properly interpreted, does not have that effect.
 
The judges believe that the present statutory provision is less than satisfactory.  The Lord Justice General has suggested that the divisions of opinion expressed judicially in these appeals call for a clear, well-considered legislative solution.

A further consequence of the decision of the majority is that the decision in another earlier case (Ansari v HM Advocate 2003 JC 105) is overruled.

These appeals will now be remitted to a court of three judges for disposal in accordance with the existing law, as interpreted by the majority.

 The Opinions can be found at  http://www.scotcourts.gov.uk/opinions/2011HCJAC20.html