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
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.”