28 November 2009

Big decision from Scots Court of Criminal Appeal

Another grim outing at the Court of Criminal Appeal in Edinburgh this week, of wider significance for those of us with in interest in criminal justice and the prison system. The central issue? The guideline punishment parts of Scottish life sentences imposed in murder cases. Arthur Hamilton, sitting in his militaire capacity as Lord Justice General, along with Lady Dorrian and Lords Reed, Clarke and Mackay of Drumadoon were formally hearing an appeal lodged by the Lord Advocate. Elish Angiolini appealed the minimum prison terms imposed on Brian Boyle, Greig Maddock and Robert Kelly under the Criminal Procedure (Scotland) Act 1995, on the grounds that the toll of years each was sentenced to was “unduly lenient”. All three were convicted of murder, Boyle and Maddock arising from the same, utterly appalling treatment meted out to Robert Bowie. The harrowing facts and circumstances of his death are set out in detail in the judgement, described by Hamilton as “redolent of the medieval horrors of execution by burning.” Kelly killed Agnes Mechen in 2002. All three saw their minimum tariffs in prison extended by the court.

However, Scotland’s chief public prosecutor also determined to make “use of the opportunity presented by these appeals to invite this court to give guidance under section 118(7) of the 1995 Act on punishment parts in murder cases.” Most of you will be very familiar with the formulation that a conviction for murder attracts a mandatory life sentence. You will also have heard radio announcers crying “x sentenced to 16 years in prison for the murder of y”. Life doesnae mean life. Well, not necessarily. Broadly how sentencing in this area now functions is that a punishment part of the sentenced is set by the judge, before which the convicted murderer cannot be paroled. Release is not, therefore, immediately promised by the punishment part of your sentence coming to an end. That becomes a matter of parole, handled by the relevant authorities.

The Lord Advocate was getting at this first bit of the sentencing. She asked the Court for general guidance on judges’ understandings of what a typical minimum or maximum sentence should be. Although I’ve no way of validating this claim empirically, the judgement suggests that an understanding of a 12 year ‘starting point’ for murder convictions had sprung up – reflected in scholarly literature – with extra years accumulating based on aggravating or mitigating features in the circumstances. After the case if Walker involving a corporal in the Royal Scots who shot and killed three other soldiers - retired David Cunningham, Terence Hosker, John Thomson – robbing them of the army payroll they were transporting. On appeal, Walker’s minimum sentence was reduced from 30 to 27 years.

Said Angiolini before the appeal:

“As lord advocate I consider that is inadequate to reflect the wide range of conduct which may amount to murder and fails to reflect adequately the exceptionally serious cases of murder, particularly those involving multiple victims, terrorism or persistent sexual violence against vulnerable adults or children.

"I am asking the court to consider issuing a guideline opinion which will recognise that 30 years is not the absolute maximum punishment part and recognises explicitly that in some exceptional cases a punishment part which exceeds the natural life expectancy may be appropriate."

Said the court this week:

“A punishment part as low as twelve years would not be appropriate unless there were strong mitigatory circumstances, and a punishment part of less than twelve years should not be set in the absence of exceptional circumstances - for example, where the offender is a child.”

The Lord Advocate apparently particularly emphasised knife crime in her submissions, which the court. The judges replied:

“We agree that at the present time knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths.”

Although the court uses the rhetoric of deterrence, this seems to me a bit of a red herring. Speak to criminologists who make deterrence incentives their life’s work, who explore it empirically. The prospect of a distant, cold disposal of your murder case in this way is profoundly unlikely to seep into the public consciousness. That is not to say that we might not wish to impose steeper sentences on those who gouge and shank their victims. However, deterrence is unlikely to be part of the justification for it. Nevertheless, in circumstances where death results from, the court directs that:

“Sentences which may cause individuals to think more carefully before arming themselves and which reflect public concern at such killings are appropriate. Other than in exceptional circumstances we would expect punishment parts in cases of that kind to be at least sixteen years, and they might be significantly longer depending on the circumstances.”

Repudiating any suggestion that 30 years should be the maximum sentence for murderers, the court said:

“In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than thirty years may, subject to any mitigatory considerations, be appropriate.”

Should this be welcomed? Certainly, anyone who reads what Boyle and Maddock did cannot be unmoved. The urge to punish is, understandably, very strong. Moreover, after being so apparently cavalier about their hideous brutality to one life - arguments from public safety become strongly relevant. Personally, I've a deep ambivalence about the whole imprisonment project. Why is 16 years an improvement on 12? What are the purposes of such incarceration? Is it easy to have confidence in the judicial calculation and its rationality? C'est difficile...

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