Flynn & Ors v. Her Majesty's Advocate (Scotland)  UKPC D1 (18 March 2004)
Privy Council DRA. Nos. 1, 2 3 and 4 of 2003
(1) Patrick Anthony Flynn
(2) Peter Mitchell Meek
(3) John Gary Nicol and
(4) Peter McMurray Appellants
Her Majesty's Advocate Respondent
THE HIGH COURT OF JUSTICIARY
JUDGMENT OF THE LORDS OF THE JUDICIAL
COMMITTEE OF THE PRIVY COUNCIL,
Delivered the 18th March 2004
Present at the hearing:-
Lord Bingham of Cornhill
Lord Hope of Craighead
Lord Rodger of Earlsferry
Baroness Hale of Richmond
Lord Bingham of Cornhill
- Since the abolition of the death penalty for murder in 1965, judges in the three United Kingdom jurisdictions have been required to impose a sentence of life imprisonment on adults convicted of murder. This sentence has been understood, intended and treated as a maximum: it has not, save in a very small minority of cases, represented the term for which the defendant was intended to be or has in practice been imprisoned. Thus it has been necessary to develop procedures for deciding how long a prisoner should remain in prison as punishment for the crime he has committed, and also for deciding whether and when it is safe to release him. These procedures have evolved considerably over the years since 1965, and the practice within the three jurisdictions has to some extent varied.
- My noble and learned friends Lord Hope of Craighead and Lord Rodger of Earlsferry have described the procedure followed in Scotland before the enactment by the Scottish Parliament of the Convention Rights (Compliance) (Scotland) Act 2001 and have summarised the effect of that Act so far as relevant to the devolution issue now before the Board. I gratefully adopt and need not repeat their accounts. The question which now arises is whether section 2 of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by the 2001 Act, and Part I of the Schedule to the 2001 Act are incompatible with the Convention rights of the appellants, since if they are the Scottish Parliament had no competence to enact these provisions and they are not law: Scotland Act 1998, section 29(1),(2)(d).
- The procedure adopted in Scotland before enactment of the 2001 Act was subject to three weaknesses. First, and most importantly, it allocated to a minister, a member of the executive, the all-important function of deciding how long a prisoner should be detained in prison as punishment for his crime. This he did, first, by deciding when a case should be referred to the Parole Board and, secondly, by deciding whether to accept a Parole Board recommendation that a prisoner be released. Since those functions, however described, are sentencing functions, since the passing of sentence is part of a criminal trial, since a criminal trial must be conducted in public by an independent and impartial tribunal and since a minister is not such a tribunal, this procedure plainly violated the prisoner's rights under article 6 of the Convention. Secondly, save on the infrequent occasions when the trial judge exercised his power to recommend a minimum period of custody before parole was considered (a power exercised in no more than a minority of cases), a prisoner received on conviction no official indication of the term he might be required to serve as punishment for his crime. Thus he was left in a state of uncertainty: he could not know when his fitness for release on grounds of risk might come to be considered. Thirdly, the procedure provided for assessment of a prisoner's fitness for release on grounds of risk before a decision was made on whether he had served a term long enough to punish him for his crime. No doubt the procedure worked reasonably well in practice, and it was rare for the judges to advise that further detention was necessary for punitive purposes when consulted after the Parole Board's decision that a prisoner could safely be released. But it would have been more logical to decide how long a prisoner should be detained for punitive purposes and then, at or towards the end of that period, to decide whether the prisoner could safely be released.
- The regime introduced by the 2001 Act addressed all three of these weaknesses. The punitive term (or punishment part) of the life sentence was to be imposed by the trial judge in open court following conviction, like any other sentence, and would be subject to appeal like any other sentence. The prisoner would know from the outset when he could expect to be released if it were judged safe to release him. The prisoner's progress through the prison system would be so managed that, as the end of his punitive term approached, his fitness for release could be assessed with a view to releasing him at the end of that term if it were judged safe to do so.
- Underlying the prescient and well-devised scheme of the 2001 Act was the overriding objective of introducing a regime which would respect the Convention rights of defendants tried for murder in Scotland. The legislation was indeed prompted by recognition that the first weakness identified above involved an obvious breach of the Convention rights of such defendants, as made clear by the title of the Act and the Policy Memorandum which was issued when the Convention Rights (Compliance) (Scotland) Bill was introduced. The new regime was intended to be fully compliant and thus to preclude any possibility of successful challenge on Convention grounds. Provision had however to be made for adult mandatory life prisoners previously sentenced under the old procedures now to be superseded. Here the intention was clear: in the cases of those adults already serving mandatory life sentences, the new procedures were to act neutrally, neither lengthening nor shortening the terms which such prisoners would otherwise have served. This intention was expressly stated in the Policy Memorandum. It was also reflected in the special provision made for those prisoners who had been officially notified of their provisional release dates. It would doubtless have been thought unfair to change the rules to the disadvantage of a serving prisoner, perhaps years after a crime was committed. Such retrospective penalisation might well have been thought to offend the spirit of article 7 of the Convention, whether or not it offended the letter.
- It is unnecessary to repeat the summary given by Lord Hope of the stage of his sentence which each of the appellants had reached when his proceedings were brought. It is evident that none of them had as firm an expectation of early release as a prisoner with a provisional release date. But each of them, having been notified of a date on which his case would be considered (or reconsidered) by the Parole Board, was in a much more favourable position than a prisoner to whom no such date had been given: each of the appellants could hope, realistically, that he might be considered safe to release when his case was next considered by the Parole Board and that, if he were, the period of detention already undergone would be considered long enough for punitive purposes. At worst, he could reasonably hope to move a stage further towards release. It would plainly offend the principle of neutrality on which the transitional provisions were based if the new procedures were to operate in any significant way to the disadvantage of prisoners in the position of the appellants.
- If I were persuaded that section 2 of the 1993 Act as amended and Part I of the Schedule to the 2001 Act, properly interpreted, precluded the High Court, when specifying the punishment part of the life sentence to be served by each of the appellants, from taking account of and giving appropriate weight to the Parole Board hearing dates formally notified to them respectively, I should have grave doubts whether a breach of article 7 of the Convention was not involved. But paragraph 14 of the Schedule permits account to be taken of some events occurring after the notional date of original sentence, as Lord Hope and Lord Rodger have shown, so the provisions cannot be read as absolutely prohibiting consideration of such events. It is further evident that such an absolute prohibition would, or certainly might, infringe the principle of neutrality in cases such as the appellants'; and it would be contrary to ordinary notions of fairness to deny to a serving prisoner the benefit of such officially-recognised progress as he had made towards release. None of this can the Scottish Parliament have intended. The wording of paragraph 13 of the Schedule is, in my opinion, intended to protect a serving adult mandatory life prisoner against any general inflation in the length of prison terms which may have occurred since the date of his original sentence, but not to deny him the benefit of considerations, favourable to him, of which a fair and rational sentencer would wish to take account.
- This reading of Part I of the Schedule does not treat a Parole Board hearing date as if it were a provisional release date. On the Parole Board hearing date, the possibility remains that it may not be thought safe to release a prisoner; and even if it was in the past thought safe to release a prisoner it was often the practice, under the pre-2001 procedure, for prisoners to be required to prove themselves in open conditions over a period of about two years before release. The appellants cannot rely on the new procedures to improve their position, but they are entitled to claim that they should not be prejudiced. This is a claim to which due effect may be given when their appeals against sentence are heard.
- For reasons given by my noble and learned friend Lord Rodger, I am satisfied that none of the appellants' arguments based on article 5, 6, 14, 17 and 53 of the Convention can be accepted.
- In my opinion, the appellants' challenge to the compatibility of Part I of the Schedule to the 2001 Act with the Convention fails, and their appeals must be dismissed.
Lord Hope of Craighead
- The issue in these appeals is whether certain of the provisions of the Convention Rights (Compliance) (Scotland) Act 2001 ("the 2001 Act") are compatible with the appellants' Convention rights. This is a devolution issue within the meaning of paragraph 1(a) of Schedule 6 to the Scotland Act 1998, because it raises the question whether these provisions were within the legislative competence of the Scottish Parliament. The appeals have been brought before the Judicial Committee under paragraph 13 of Schedule 6 to the 1998 Act with leave of the High Court of Justiciary.
- The purpose of the 2001 Act, as its short title indicates, was to give effect to the incorporation of the Convention rights as defined in section 1 of the Human Rights Act 1998 into domestic law by making such amendments to existing legislation relating to the functions of the Scottish Executive as were thought to be necessary or expedient in order to ensure that the way it performed these functions was compatible with the Convention rights. It followed an extensive audit which the Scottish Executive had carried out in all its departments, including those with functions relating to the sentencing and release of life prisoners. It was in essence a remedial measure. Its intention was to bring about benefits where they were needed in order to ensure compatibility, but not to make people worse off than they were before. Among the provisions which were thought to require amendment were those relating to adult mandatory life prisoners ("AMLPs") in the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). In their case too the 2001 Act was intended to be neutral in its effect: see paragraph 34 of the Policy Memorandum which accompanied the draft Bill when it was introduced to the Scottish Parliament on 10 January 2001, which states:
"The changes proposed are changes in the release arrangements for AMLPs only and, as such, are neutral so far as the length of sentences is concerned. Sentencing remains a matter for the courts and it is not expected that the changes proposed would lead to any increase or decrease in the period that AMLPs are expected to serve in custody."
- The appellants are all adult mandatory life prisoners. They were already serving their sentences on 8 October 2001 when the relevant provisions of the 2001 Act came into operation: see the Convention Rights (Compliance) (Scotland) Act 2001 (Commencement) Order 2001 (SI 2001/274). Part I of the Act sought to place the provisions for the sentencing and release of adult mandatory life prisoners on to the same footing as that which already applied to discretionary life prisoners and those who were still under the age of 18 when they were sentenced. Ministerial discretion was to be removed entirely from the release process. Instead, life sentences were to comprise two elements. These were to be "the punishment part", which was to be specified under section 2(3) of the 1993 Act in an order made by the court which imposed the life sentence, and the period (if any) which might be thought to be necessary for the protection of the public by the Parole Board. Transitional provisions were set out in the Schedule to the Act to deal with the cases of those who were already serving their sentences of life imprisonment. The appellants' complaint is that the neutrality that was intended has not been achieved in their case, as the effect of the transitional provisions has been to extend the period that they are likely to have to serve in custody.
- It has not been suggested that the appellants are not victims of the legislation which they say is outside competence. But it is only if the legislation cannot be read and given effect by reading it as narrowly as is required for it to be within competence that the question can arise as to whether it is indeed outside competence and must be held to be, as section 29(1) of the Scotland Act 1998 puts it, "not law": see section 101(2) of the 1998 Act. It follows that the first point to be addressed in this case, under the system which the Scotland Act 1998 has laid down, is how the legislation ought to be interpreted. But before I turn to examine this issue I must say something about the facts.
- The appellants are all prisoners serving mandatory life sentences for murder. Prior to the coming into operation of the 2001 Act their cases were being managed in accordance with the law and practice established under the Prisons (Scotland) Act 1989 as re-enacted and amended by the Prisoners and Criminal Proceedings (Scotland) Act 1993.
- The appellant Flynn was sentenced on 11 January 1989 to detention for life in a young offenders institution for a murder which he committed on 2 September 1988. He was 18 years old at the time of the offence. On 6 December 2000 his sentence was backdated to 5 September 1988, in order to give effect to the decision in Elliott (No 2) v HM Advocate, 1997 SLT 1229 that when passing a mandatory sentence of life imprisonment a trial judge was required by section 218 of the Criminal Procedure (Scotland) Act 1975 (now section 210(1) of the 1995 Act) to specify the date of the commencement of the sentence. At p 1231H-I Lord Justice Clerk Ross pointed out that the question whether a mandatory life sentence should be backdated was not an academic one, because the date at which the sentence was held to have commenced might affect the date at which the Preliminary Review Committee ("the PRC") could first consider the case of the prisoner. In the light of a recommendation by the PRC and following a decision by the Secretary of State for Scotland which was intimated to him on 7 June 1993 Flynn's case was reviewed by the Parole Board in April 1997, February 1999 and January 2001. After the last of these reviews he was informed that the Parole Board would review his case again in two years time. Had the law remained unchanged his case would have been reviewed again in or about January 2003. When the relevant provisions of the 2001 Act came into operation on 8 October 2001 the arrangements for that review were cancelled. His case was referred instead by the Scottish Ministers to the High Court of Justiciary under paragraph 3 of the Schedule to the 2001 Act for a hearing under paragraph 12 of the Schedule. On 5 August 2002 the High Court made an order under paragraph 13 of the Schedule specifying the punishment part of his sentence as 15 years. The effect of that order was that the further review of his case did not take place until September 2003.
- The appellant Meek was sentenced on 2 June 1995 to life imprisonment for a murder which he committed on 7 February 1995. He was 57 years old at the time of the offence. His sentence was later backdated to 9 February 1995. On 10 May 1999 the PRC recommended that his case be referred for a first formal review to the Parole Board after he had served 8 years in custody. By letter dated 16 September 1999 he was informed by the Scottish Executive Justice Department that they had accepted this recommendation. Had the law remained unchanged his case would have been reviewed in or about February 2003. Following the coming into operation on 8 October 2001 of the relevant provisions of the 2001 Act his case was referred by the Scottish Ministers to the High Court of Justiciary for a hearing under paragraph 12 of the Schedule. On 17 September 2002 the High Court made an order under paragraph 13 of the Schedule specifying the punishment part of his sentence as 14 years. The effect of that order is that his case will not now be reviewed by the Parole Board until February 2009.
- The appellant Nicol was sentenced on 6 December 1995 to life imprisonment for a murder which he committed on 6 August 1995, to which date his sentence was backdated. He was 21 years old at the time of the offence. In 1999 the PRC recommended that his case be referred for a first formal review by the Parole Board after he had served 10 years in custody. By letter dated 27 April 2000 he was informed by the Scottish Executive Justice Department that they had accepted this recommendation. Had the law remained unchanged his case would have been reviewed in or about August 2005. Following the coming into operation on 8 October 2001 of the relevant provisions of the 2001 Act his case was referred by the Scottish Ministers to the High Court of Justiciary for a hearing under paragraph 12 of the Schedule. On 23 September 2002 the High Court made an order under paragraph 13 of the Schedule specifying the punishment part of his sentence as 14 years. The effect of that order is that his case will not now be reviewed by the Parole Board until August 2009.
- The appellant McMurray was sentenced on 14 November 1985 to life imprisonment with effect from that date for three murders which he had committed on 24 July 1985. The trial judge made a recommendation under section 205A of the Criminal Procedure (Scotland) Act 1975 that the minimum period which should elapse before he was released on life licence was 20 years. His case was first considered by the PRC in December 1989. In December 1995 the PRC recommended that his case be referred for a first formal review by the Parole Board after he had served 14 years in custody. By letter dated 20 February 1996 he was informed that the Secretary of State for Scotland had accepted this recommendation. In the event his case was considered by the Parole Board for the first time in April 2000. He was not recommended for release at that stage, but he was moved to an open prison and began work placements in the community. He was told that his case would be considered again in April 2002. That hearing was cancelled due to the enactment of the 2001 Act, which was passed by the Parliament on 30 May 2001 and received the Royal Assent on 5 July 2001. He was moved back from the open prison into closed conditions. Following the coming into operation of the relevant provisions of the 2001 Act on 8 October 2001 his case was referred by the Scottish Ministers to the High Court of Justiciary for a hearing under paragraph 12 of the Schedule. On 1 July 2002 the High Court made an order under paragraph 13 of the Schedule specifying the punishment part of his sentence as 30 years. The effect of that order is that his case will not now be reviewed by the Parole Board until November 2015.
- It can be seen from this brief survey of the history of the appellants' cases that the effect of the 2001 Act has, for them, been anything but neutral. It would not be surprising if they felt greatly aggrieved by what has happened to them.
The pre-existing system
- Provisions for the remission of sentences of imprisonment in Scotland date from the 1930s. Provision was first made for the release on licence of prisoners who were serving a term of imprisonment for life by section 57 of the Criminal Justice (Scotland) Act 1949. Section 2 of the Murder (Abolition of the Death Penalty) Act 1965 provided that no person convicted of murder was to be released by the Secretary of State on licence unless he had previously consulted with the Lord Justice General together with the trial judge if available. That section was replaced by section 61 of the Criminal Justice Act 1967, later replaced in its turn by section 26(1) of the Prisons (Scotland) Act 1989, which introduced a further requirement that any such release should be on the recommendation of the Parole Board. In 1968 the Parole Board for Scotland was established.
- In 1980 the Secretary of State for Scotland established a non-statutory committee, known as the Preliminary Review Committee ("the PRC"), whose function was to recommend to the Secretary of State the date when a prisoner's case should be first sent for review by the Parole Board as to his eligibility for release on life licence. The practice of the PRC was to meet in private and to consider the case of each life prisoner when he had served four years of his sentence. It was chaired by a senior official of the Scottish Office Home and Health Department after the coming into operation of the Scotland Act 1998 his department was the Scottish Executive Justice Department. The other members were the Chairman of the Parole Board, a High Court Judge and a psychiatrist, both of whom were also members of the Parole Board, and a senior official from the Scottish Prison Service.
- The practice of the PRC was to examine the criminal justice requirements of punishment and general deterrence as well as risk to the public on release. Its aim was to recommend a date for the review of the prisoner's case by the Parole Board on which there was a realistic possibility that it would recommend release. It was assumed that about two and a half years would elapse between any such recommendation and actual release, bearing in mind the process of consultation that still had to be carried out and the need for the institution and successful completion of an appropriate pre-release programme. The PRC's recommendation as to the first review date took account of such factors as the prisoner's response in custody, any expressions of remorse or a clear acceptance of guilt and the nature of the crime. It was the practice then for the Secretary of State, and in their turn the Scottish Ministers, to decide on the date of the first review by the Parole Board in the light of the recommendation by the PRC and any representations by the life prisoner, who was informed of the decision which had been taken in his case.
- In practice the Secretary of State and the Scottish Ministers accepted the first review date recommended by the PRC. The PRC could choose not to recommend a review date but instead to look at the case again at some other date in the future. But its practice was not to do this indefinitely. This was an essential part of the humane management of the life sentence. Every adult mandatory life prisoner knew that sooner or later he would be given a first review date ("the PRC date"). The PRC's decision was, from his point of view, a highly significant one. It was an important and much sought after milestone. Its effect was to identify the minimum period that he would have to serve before he could be released on the recommendation of the Parole Board.
- When the prisoner's case was referred to it the Parole Board proceeded to carry out a review, with the assistance of a local review committee in the prisoner's establishment. The question to which the Parole Board directed its attention was the risk to the public if the prisoner was to be released. When it was satisfied that the prisoner was suitable for release on public safety grounds it set a provisional release date ("the PRD"), which was then communicated to the Secretary of State or the Scottish Ministers. Only when this had been done were the senior judiciary consulted with a view to obtaining their advice as to whether the requirements of punishment and general deterrence would have been satisfied if the prisoner were to be released on the PRD, assuming that by that date he had successfully completed his pre-release programme. The senior judiciary were, of course, entitled to advise the ministers that the period which the prisoner would have served in custody by the time of the PRD was insufficient to meet the criminal justice requirements and from time to time, on a few occasions, they did so.
- If the Parole Board did not feel able to identify a PRD, or its recommendation for release was not accepted, the practice was for further reviews to take place either annually or biennially, depending on the prisoner's security category. In all cases the prisoner was informed of the PRD recommended by the Parole Board and of the views of the senior judiciary, and he was given an opportunity of making representations about them. The ministers in their turn were not obliged to accept the PRD recommended by the Parole Board or the views of the senior judiciary, and there were occasions when the view was taken that the prisoner would have to serve longer in custody. The parties are agreed in the cases of the appellants Flynn, Meek and Nicol that their cases do not fall within the criteria for refusal by ministers of a recommendation for a provisional release date by the Parole Board.
The transitional arrangements under the 2001 Act
- The Schedule to the 2001 Act is divided into six parts, of which the first five are concerned with life prisoners. Part 1 deals with existing life prisoners as defined in paragraph 1 read with paragraph 2, Part 2 with existing designated life prisoners as defined in paragraph 27, Part 3 with existing life prisoners recommended for release, Part 4 with transferred life prisoners and Part 5 with life prisoners transferred under the Mental Health Acts. Paragraph 2 provides that the expression "existing life prisoner" means a life prisoner to whom Part 1 of the Schedule applies by virtue of paragraph 1. Paragraph 1 states that it applies to a life prisoner
"(a) who was, prior to the relevant date, sentenced for murder committed by the prisoner when aged 18 or over; or
(b) in respect of whom, the Lord Justice General or the Lord Justice Clerk has issued a certificate under
(i) paragraph 6(1) of Schedule 6 to the 1993 Act; or
(ii) section 16(2) of the Crime and Punishment (Scotland) Act 1997 (c.48)."
- Life prisoners falling within the category mentioned in paragraph 1(b)(i) of the Schedule are those serving discretionary life sentences. Those falling within the category mentioned in paragraph 1(b)(ii) are those who were convicted of murder when they were under 18. The appellants all fall within the category mentioned in paragraph 1(a).
- Paragraph 3 of the Schedule provides that the Scottish Ministers shall, as soon as reasonably practicable after the relevant date, refer the case of an existing life prisoner, except in the case of such a prisoner who was released on licence under section 3 of the 1993 Act, to the High Court of Justiciary for a hearing under paragraph 12. Paragraph 12 provides that there shall be a hearing at which the High Court of Justiciary shall make the order referred to in paragraph 13. Paragraph 13 provides:
"That order is an order specifying a part of the sentence which the court considers would have been specified as the punishment part under subsection (2) of section 2 of the 1993 Act had that section, as amended by this Act, applied to that prisoner at the time he or she was sentenced."
- Section 2(2) of the 1993 Act, prior to its amendment by section 1(3) of the 2001 Act, was enacted in the light of the decision in Thynne, Wilson and Gunnell v United Kingdom (1990) 13 EHRR 666, in which it was held that discretionary life sentence prisoners should have their release dates determined by a judicial process as of right once they had served the part of the life sentence that was appropriate having regard to the nature of the offence for which they had been sentenced. The system was for the court to make an order under subsection (2) at the time of sentence specifying the part of it that was appropriate to satisfy the requirements of punishment and general deterrence. The effect of that order was, under subsection (6), to entitle the discretionary life prisoner at any time after that part had been served to require the Secretary of State to refer his case to the Parole Board and, under subsection (4), to require the Secretary of State to release the prisoner on licence if directed to do so by the Parole Board.
- The imposition of a mandatory life sentence is not in itself incompatible with Convention rights: Wynne v United Kingdom (1994) 19 EHRR 333. The existing system for the sentencing and release of this category of life prisoner was nevertheless seen to be vulnerable to this criticism. So it was considered necessary, in order to ensure its compatibility, to remove ministerial discretion from this category and to ensure that the question of release was the sole responsibility of the Parole Board. The purpose of section 1 of the 2001 Act was to extend to adult mandatory life prisoners the benefit of the system which had already been given to discretionary life prisoners. As amended by section 1(3) of the 2001 Act, and as applicable to adult mandatory life prisoners, section 2(2) provides:
"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;
(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."
- The effect of these provisions was considered by the High Court of Justiciary in Stewart v HM Advocate, 2002 SLT 1307. The appellant in that case had been sentenced to life imprisonment for murder on 17 December 1993. He was an existing adult mandatory life prisoner for the purposes of Part I of the Schedule to the 2001 Act. He was therefore in the same category as the appellants in these appeals. On 11 March 2002 the High Court specified the punishment part of his sentence as 14 years. The appellant appealed against this order on the ground that the punishment part was excessive. He drew attention to the fact that he had been told that he was to be considered for release after 10 years under the pre-existing system, whereas the effect of the order was that the Parole Board would be unable to consider his release until he had served 14 years. His counsel said that he had a legitimate expectation that he would be released after 10 years. She submitted that the court should take into account the prejudicial effect of selecting a punishment part which conflicted with the expectation which had been entertained by the appellant prior to the coming into force of the 2001 Act.
- This argument was rejected by the High Court of Justiciary. At p 1309, para 13 the Lord Justice General (Cullen) giving the opinion of the court said:
"In considering this submission it is important to bear in mind that under para 13 of the Schedule to the 2001 Act, the question is what would have been specified as the punishment part if the new statutory provisions had been in force at the time when the accused was sentenced. It follows that matters which were not known at that time cannot properly be taken into account (cf Murray v HM Advocate, [2000 JC 102, 107]). Accordingly, in our view, the prior arrangements for considering whether the appellant should be released on licence should not be taken into account in the fixing of the punishment part. We can well appreciate that the latter may well cut across these arrangements. However, the need, if any, for the modification of the new statutory provisions on that account was a matter for the legislature."
That decision was followed and applied in McCreaddie v HM Advocate, 2002 SLT 1311. The court rejected the submission that the fact that the PRC had recommended that the appellant be eligible for reference to the Parole Board after serving nine years of his sentence was relevant to the selection of the appropriate punishment part: see p1312C-D, paras 3 and 4.
- This approach to the meaning of paragraph 13 of the Schedule was applied by each of the judges who specified the punishment part of the appellants' sentences, and it was once again followed and applied by the Appeal Court when it was dealing with these appeals. In the course of the opinion of the court in this case, 2003 SLT 954, 963, para 46 the Lord Justice General said:
"The communication to a prisoner such as the appellants of information as to the stage at which his case would be reviewed, or further reviewed, by the Parole Board might have founded a successful challenge to the ministers' alteration of this where there was no change of policy or misbehaviour on the part of the prisoner. However, that appears to me to be neither here not there since the legislature has superseded the previous system with a new one and has made provision as to the extent to which steps taken under the previous system should be taken into account in its transitional provisions."
- If the meaning to be given to paragraph 13 of the Schedule was a matter to be determined solely within the domestic system, the decisions of the High Court of Justiciary as to its meaning in Stewart v HM Advocate, 2002 SLT 1307, and McCreaddie v HM Advocate, 2002 SLT 1311, would have to be regarded as final and conclusive and not subject to review by any court whatsoever: see Criminal Procedure (Scotland) Act 1995, section 124(2). But the Lord Justice General's observation that the need for any modification of the new statutory provisions to take account of the arrangements that were being made for the review of the appellant's case by the Parole Board under the pre-existing system was a matter for the legislature was, with great respect, not entirely accurate. It was indeed a matter for the legislature, but only if the legislation that it enacted was within its competence. One might have expected that the 2001 Act, which was enacted to ensure that the system for the sentencing and release of life prisoners was compliant with their Convention rights would be immune from the criticism that it contained provisions that were outside the Parliament's competence because they were incompatible with Convention rights. But the effect of the decisions in Stewart and McCreaddie has been to focus the appellants' attention on this issue as the only route that is now open to them to obtain a remedy.
The devolution issue
- Mr Bovey QC for the appellants Flynn, Meek and Nicol based his challenge to paragraph 13 of the Schedule to the 2001 Act, which Mr McBride QC adopted for the appellant McMurray, on five distinct grounds. These were (a) that it was incompatible with article 7 of the Convention, because it had the effect of imposing a heavier penalty than that which was applicable at the time their offences were committed; (b) that it was incompatible with article 5.1 read together with articles 17 and 53, because it had no objective or reasonable justification and was arbitrary; (c) that it was incompatible with articles 5 and 7 because it violated the principle of legality; (d) that it was incompatible with article 5 read with article 14, because it was discriminatory; and (e) that it was incompatible with article 6, because its effect was to take the determination of the criminal charges against the appellants beyond a reasonable time. His basic proposition was that Part I of the Schedule should be held to be not law because it was, on one or other or all of these grounds, outside the competence of the Scottish Parliament.
- But the first issue that has to be addressed, as I said at the outset, is how the legislation that is under challenge ought to be interpreted. Section 101(1) of the Scotland Act 1998 provides that that section applies to any provision of any Act of the Scottish Parliament which could be read in such a way as to be outside competence. Section 101(2) provides:
"Such a provision is to be read as narrowly as is required for it to be within competence, if such a reading is possible, and is to have effect accordingly."
This provision is reinforced by section 3(1) of the Human Rights Act 1998, which requires Acts of the Scottish Parliament to be read and given effect in a way that is compatible with Convention rights: see the definition of "subordinate legislation" in section 21(1) of the Human Rights Act 1998.
- The devolution issue which is before us as to how paragraph 13 of the Schedule ought to be interpreted breaks itself down therefore into two questions, which are these:
(1) what does paragraph 13 mean?
(2) was the paragraph, on that reading, within the competence of the Scottish Parliament?
In order to set the context for the way in which I would answer these questions I propose to examine first the grounds on which it was said that the paragraph as interpreted by the High Court of Justiciary was incompatible with the appellants' Convention rights. This is because the stronger the case is for saying that there was an incompatibility, the stronger the argument is for giving a different meaning to the paragraph.
Compatibility with article 7.1
- Article 7.1 of the Convention is in these terms:
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
The argument about the incompatibility of paragraph 13 of the schedule with article 7.1 is addressed to the second sentence of the article.
- The penalty that the law imposed for murder at the time when the appellants' offences were committed was life imprisonment: section 205(1) of the Criminal Procedure (Scotland) Act 1975, which was subsequently repealed and re-enacted as section 205(1) of the 1995 Act. Section 205A(4) of the 1975 Act, now section 205(4) of the 1995 Act, provides that on sentencing any person convicted of murder a judge may make a recommendation as to the minimum period which should elapse before the Secretary of State releases that person on licence. No complaint can or is being made about the fact that the appellants received life sentences or that a recommendation was made in McMurray's case. The complaint is directed instead to the substitution for the system that was previously in place for the recommendation of a date when they could be released on life licence of a system whose effect is likely to be that they will spend substantially longer periods in custody. Can this be said to be a heavier "penalty" than was, at the time when the offences were committed, to have been "applicable"?
- There is no doubt that the main focus of the second sentence of article 7.1 is on the penalties that have been prescribed by the law for the offence. On this reading of it, the word "applicable" directs attention to the penalty or range of penalties that could lawfully have been imposed at the time when the offence was committed. At the time when the appellants committed their offences the penalty for murder was, of course, life imprisonment. On this approach the appellants have nothing to complain about. The penalty which was applicable to their offences was life imprisonment.
- But it has now been made clear by the European Court in Stafford v United Kingdom (2002) 35 EHRR 1121 that it is wrong to regard a sentence of life imprisonment as a sentence that the prisoner be imprisoned for life. As the court says at p 1141, para 71, it was never anticipated that prisoners serving mandatory life sentences would in fact stay in prison for life, save in exceptional cases. Having noted the evolving analysis in terms of the right to liberty and its underlying values that was demonstrated by developments that had been taking place in England in the management of life sentences, the court said at p 1144, para 79 that the mandatory life sentence does not impose imprisonment for life as a punishment and that the tariff, which reflects the individual circumstances of the offence and the offender, represents the element of punishment. It concluded that the finding in Wynne v United Kingdom 19 EHRR 333 that the mandatory life sentence constituted punishment for life can no longer be regarded as reflecting the real position in the criminal justice system of the mandatory life prisoner. It said that it was reinforced in this conclusion by the fact that a whole life tariff might, in exceptional cases, be imposed where justified by the gravity of the particular offence.
- The system for the management of life sentences has not been the same in Scotland as it is in England. Tariffs were not set according to the English practice: see R v Secretary of State for the Home Department, Ex p Pierson  AC 539, 601A-602C. But there are sufficient similarities between the two systems for it to be possible to extend the reasoning of the European Court in Stafford v United Kingdom to the practice which operated in Scotland before the coming into operation of the relevant provisions of the 2001 Act.
- The important point for present purposes is the fact that the system which was in place for deciding on the length of time the prisoner was to spend in custody for the purposes of punishment and his release following its expiry was itself part of the life sentence. It was, to return to the language of the second sentence of article 7.1, part of the "penalty" that was "applicable". It was part of the penalty because, save in exceptional cases, the mandatory life sentence does not impose imprisonment for life as a penalty. This means that other aspects, including the system for release and the effect of the licence that the prisoner is given when released, are to be regarded as part of the penalty. This analysis gives effect, as the European Court points out in Stafford 35 EHRR 1121, 1143, para 78, to the right to liberty and its underlying values that are enshrined in article 5.4 of the Convention. It also gives effect to the importance, to which the court draws attention at p 1140, para 68 of its judgment, of interpreting and applying the Convention in a manner which renders its rights practical and effective, not theoretical and illusory. As it points out in the last sentence of that paragraph, a failure to maintain a dynamic and evolutive approach would risk rendering it a bar to reform or improvement.
- For the reasons which have been given by my noble and learned friend Lady Hale of Richmond, I regard the introduction of an entirely new component into the system, the punishment part, as engaging article 7 of the Convention. Like her, I do not wish to cast doubt on the validity of changes after the offence was committed to guidelines as to how sentences may be arrived at within the maximum sentence that was applicable to the offence. Nor is my approach based on any assumptions about the thoughts, if any, that may at the time of the offence have been passing through the mind of the perpetrator. He may well have not given a moment's thought to the question of penalty and, if he did, his thoughts may well not have been rational. But that is not the test by which one determines whether, when a penalty is being imposed on him, it is compatible with his Convention rights. The approach which the Convention takes is an objective one. In this way its protections are applied equally to everyone, however thoughtless they may be and however irrational.
- For these reasons I would hold that, for the purposes of the guarantee which is to be found in the second sentence of article 7.1, the introduction into the system of a new component that had the effect of requiring the adult mandatory life prisoner to serve a longer period in custody than he would be likely to have served under the pre-existing system would constitute a heavier penalty and would, for this reason, be incompatible with the Convention right. I should like to make it clear however that it is the right to be considered for release under that system that is the subject of the Convention right. As this was a system of uncertain outcome, it would not be correct to say that the mere fact that the prisoner was being required to remain in custody for any particular period would result in the imposition of a heavier penalty.
- The conclusion which I have reached about article 7.1 is sufficient to raise the question whether it is possible to read and give effect to paragraph 13 of the Schedule in such a way as is required for it to be within competence. So I do not need to examine the other grounds on which Mr Bovey sought to argue that Part I of the Schedule was incompatible with the appellants' Convention rights. These seemed to me to be much more difficult, and for the reasons given by Lord Rodger I do not think that there is any merit in them.
Is another interpretation possible?
- The vice that needs to be removed is the strict reading which was given to paragraph 13 in Stewart v HM Advocate, 2002 SLT 1307 and McCreaddie v HM Advocate, 2002 SLT 1311 by the High Court of Justiciary. Are the words "which would have been specified
had that section
applied to that prisoner at the time he or she was sentenced" capable of being read in such a way as to permit the court, when making its order under that paragraph, to take account of things that have happened since the imposition of the mandatory life sentence?
- At first sight the meaning which the Appeal Court have given to this paragraph seems, on its own language, to be self-evident. But there are some quite strong indications in the overall context that a different reading is not only possible but is the only meaning that can properly be given to it in its context. Section 4 of the 2001 Act provides that Parts 1 to 5 of the Schedule have effect for the purpose of making transitional provisions in connection with sections 1 to 3 of the Act. Part 2 of the Schedule, which deals with existing designated life prisoners, simply transfers into the new system as the punishment part the part of the life sentence that was designated by an order already made under section 2(2) of the 1993 Act. Part 3, which deals with existing life prisoners recommended for release, ensures that there will so far as is reasonably practicable be no interruption in the process for their release on licence except with the approval or on the direction of the Parole Board. It is plain that these provisions have been framed on the basis that these prisoners should not be worse off than they were before, so account should be taken in their treatment of events that have happened since the date when they were sentenced.
- In Part 1 itself, paragraph 14 of the Schedule shows that events that have happened since the date when the life prisoners were sentenced are not left entirely out of account. It states that it shall not be a ground of appeal in relation to the part specified as the punishment part that the court "had regard to" any certificate issued by the Lord Justice General or the Lord Justice Clerk under paragraph 6(1) of Schedule 6 to the 1993 Act or section 16(2) of the Crime and Punishment (Scotland) Act 1997 or to any recommendation made under section 205(4) of the 1995 Act as to the minimum period that should elapse before the Scottish Ministers release the prisoner on licence. One might have expected, if events after the date of sentence were to be left completely out of account, that the effect of any such certificate or recommendation would simply have been transferred into the new system so that the court would be bound to give effect to it by not specifying a shorter period when it was fixing the punishment part. As it is, the use of the phrase "had regard to" indicates that there is room for account to be taken, in suitable cases, of events that have happened while the prisoner has been serving his sentence in custody which bear on the issue of punishment.
- There is no doubt that under the pre-existing system account was taken both by the PRC and the Parole Board of events that had happened while the prisoner was serving his sentence that bore on the issue of punishment. It is stated in the agreed statement of facts and issues that when the PRC was examining the criminal justice requirements of retribution and deterrence it took into account such factors as a good response in custody, expressions of remorse or a clear acceptance of guilt. Expressions of remorse and acceptance of guilt are, of course, factors that will be taken into account by the trial judge when he is considering the issue of punishment. But it would be wrong to assume that the book is closed on the day when the prisoner is sentenced.
- The short time that has elapsed between the date of the murder and the date of sentence (the appellants were all convicted and sentenced within about four months of the date when they committed their offences, that being the effect of the 110 day rule) and the tension which results from the trial process left little time for reflection and remorse to be encouraged and displayed before they were sentenced. The time for full reflection and a genuine appreciation of what has happened comes afterwards. The encouragement of this process, and its reflection in the assessment of what is needed for the purposes of punishment, is an important part of the management of the sentence by the prison service. This is in the public interest, because it helps to preserve order in the prisons. And it assists the process, which will come some day in almost every case, of releasing the prisoner back into society. However abhorrent their crimes, life prisoners need to be given something to work towards while they are in custody. They need to be shown that there are benefits to be earned by this process.
- The importance of this process is recognised in para 2.1 of the Scottish Prison Service's booklet "Life Prisoners", a Report by the SPS Lifer Policy, Management and Review Group, which draws attention to the fact that effective communication with life prisoners is essential and that they need to be kept informed about the management of their sentence, the opportunities to address their offending behaviour and how they can expect to progress throughout their sentence. In para 2.2 it is stated that the Group agreed that it is critical for life prisoners to receive accurate, meaningful information relating to their custodial management and the law and procedures governing their release as appropriate. This is said to be of particular importance during the induction phase. In effect, the process of working towards release begins as soon as the life prisoner has been sentenced. So one would not have expected the transitional provisions to have had the effect of removing the benefits that have been earned by the prisoner unless one was driven to the opposite conclusion by an express provision or by necessary implication from the words used in the Schedule.
- I do not find anything in the wording or the context which drives me to that conclusion. It is possible to read and give effect to the words "would have been specified
had that section
applied to that prisoner at the time he or she was sentenced" more narrowly than they have been read and given effect to by the High Court of Justiciary, and in my opinion this is how they should be read. There is, clearly, a direction about timing. But the direction is capable of being read more narrowly as one which is of a procedural nature only rather than one about substance simply as the mechanism, as Lord Rodger puts it, by which the court determines what part of the life sentence is appropriate. The direction that is made becomes part of the sentence, with all the implications that this has for the future including the right to appeal against it. But the factors that may be taken into account in this exercise are not confined, contrary to the known facts, to those which would have been before the judge at the time of sentence.
- I would hold that the Schedule to the 2001 Act can and should be read and given effect in such a way as to permit the court to take into account the progress that the appellants have already made under the pre-existing system, with the approval of the PRC and the Scottish Executive Justice Department on behalf of ministers, towards obtaining the recommendation of a provisional release date from the Parole Board. I agree with my noble and learned friend Lord Bingham of Cornhill that the appellants cannot rely on the new procedures to improve their position. But they are entitled, as he says, to claim that they should not be prejudiced. I am reassured, as to the route by which I have reached this conclusion, by the grave doubts which he has expressed as to whether a breach of article 7 would not be involved if the High Court of Justiciary were to be precluded from adopting this approach.
- I would hold therefore that it is open to the court, in order to give the paragraph a reading that is compatible with the appellants' Convention rights and to give due effect to their claim that they should not be prejudiced, to treat the fact that they have each been given a PRC date as a factor which is relevant to the fixing of the punishment part of their life sentences. The length of the period, bearing this fact in mind, that is to be specified as the punishment part is a matter for the court's assessment in the light of the circumstances existing at the date when the punishment part is fixed. The question whether the appellants may safely be released on life licence on the expiry of that period will, of course, be a matter for the Parole Board.
- I would dismiss the appeals against the lawfulness of the making of the orders specifying the part of each of these mandatory life sentences which is the punishment part, as I consider that paragraph 13 of the Schedule to the 2001 Act was within the competence of the Scottish Parliament . The question whether the punishment parts were excessive, reading paragraph 13 in the manner I have indicated, is a matter which must be determined by the High Court of Justiciary.
Lord Rodger of Earlsferry
- I have had the privilege of reading the speech of my noble and learned friend, Lord Hope of Craighead, in draft. I agree with him that the appeals should be dismissed but reach that conclusion by a somewhat different route. In giving my reasons, I gratefully adopt his account of the relevant facts and legislation.
- Before the appeal court counsel for the appellants raised the question whether the transitional provisions in Part 1 of the Schedule to the Convention Rights (Compliance)(Scotland) Act 2001 ("the Act"), relating to those who were serving a sentence of life imprisonment when the Act came into force on 8 October 2001, are within the legislative competence of the Scottish Parliament. The contention was that some of those provisions are incompatible with certain Convention rights and so outside that competence by reason of section 29(2)(d) of the Scotland Act 1998. The question thus raised by the appellants is a devolution issue in terms of paragraph 1(a) of schedule 6 to the Scotland Act. Having held that the provisions are compatible with the Convention rights relied on by the appellants and so within the competence of the Parliament, the appeal court gave leave to appeal to your Lordships' Board in terms of paragraph 13 of schedule 6.
- In making their challenge, counsel focused on the position of prisoners, such as the appellants, who had been told in writing before the Act came into force that the Parole Board would consider their suitability for release at some particular date. When the provisions of the Act were applied to them, they found that the Parole Board would not, after all, be considering their cases when originally envisaged but only at a significantly later date. For instance, on 14 November 1985 Mr McMurray was convicted of the murder of three men and sentenced to life imprisonment, with a recommendation that he should serve a minimum of 20 years in prison. As long ago as 20 February 1996 he was officially informed that the Secretary of State had accepted the recommendation that the first review of his suitability for release on licence should begin after he had served 14 years in custody, i e after 14 November 1999. (For some reason his sentence has not been backdated.) In fact the Parole Board first considered his case in April 2000 when they decided to consider it again in April 2002. After the Act was passed, in August 2001 Mr McMurray was told that the hearing in April 2002 would not go ahead. On 1 July 2002, when the provisions of the Act were applied to him, he found that in terms of the court order the Parole Board would not now review his suitability for release until after 14 November 2015, more than 15 years after his first review hearing and 13 years after the date fixed for the second hearing. His is the most extreme example, but in varying degrees the experience of the other appellants has been the same.
- Your Lordships' Board has no jurisdiction to review the judges' orders which have produced these results. The appellants have appealed against the orders and, if these constitutional appeals to the Board are dismissed, the appeal court will go on to consider the substantive appeals. The question for the Board is whether legislation that is capable of producing these results is within the competence of the Scottish Parliament and, if not, whether it can be read and have effect in such a way as to be within that competence.
- The appellants are all adult mandatory life sentence prisoners. The Act was mainly conceived to deal with the position of such prisoners. As a result of decisions of the European Court of Human Rights, changes had already been made to the position of discretionary life sentence prisoners and prisoners who had been convicted of murder committed when they were under eighteen ("under-eighteen life prisoners"). For discretionary life prisoners the court had to designate a part of the life sentence after which they could require the Scottish ministers to refer their case to the Parole Board who could, after due consideration, direct their release: section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 ("the 1993 Act"). Where they had been sentenced before the 1993 Act came into force, under paragraph 6(1) of schedule 6 the Lord Justice General had to certify his opinion as to the length of the part that the trial court would have designated if section 2(2) had applied at the date of sentence. A similar system of certification was introduced for existing under-eighteen life prisoners by section 16(2) of the Crime and Punishment (Scotland) Act 1997 ("the 1997 Act"). I refer to such certificates as "designating certificates".
- The Lord Advocate emphasised and he was right to do so that under the previous system an adult mandatory life prisoner who received a letter telling him that the Parole Board would review his suitability for release for the first time on a particular date had no reason to believe that the Board would then recommend that he should be released. More often than not, they would decide to look at the position again after he had served some further time in prison. Even if, eventually, the Parole Board decided on a provisional date for the prisoner's release, the Lord Justice General might advise the Scottish ministers that he had not served long enough for the punishment to meet the criminal justice requirements of retribution and deterrence. In that event the ministers were very unlikely to accept the Parole Board's recommendation. So there could be many a slip between the Parole Board's first consideration of a prisoner's case and his eventual release. It would therefore be wrong to see the date for a first review as anything other than one step in a complex administrative process of uncertain outcome.
- While thus accurately pinpointing all that the first review date did not imply, the Lord Advocate did rather less than justice to its real significance for a life prisoner. Admittedly, the prisoner did not have any right to be released, but he did enjoy what was in practice a right to have the question of his release reviewed at a time specified by the Parole Board. Albeit in the context of a statutory scheme, the importance of such a right was recognised by Walsh J in Ford v National Parole Board (1976) 73 DLR (3d) 630, 633. Under the Scottish system, at the beginning of his sentence the prisoner was not told of any tariff period that he would need to serve before being considered for release on licence. He was left in the dark. Of course, he would hear of other life prisoners being considered for release and eventually being released, but the first concrete sign that he himself was not to languish for ever in a prison service oubliette was the letter telling him of the date for his first Parole Board review. Not surprisingly, therefore, life prisoners attached great importance to this official notice as the first marker showing that they were on the road that should lead to their eventual release. The dates set for later hearings would be further significant markers on that same road. It cannot therefore have been anything other than a major setback for the appellants to discover that the start of the road had suddenly been moved into the distance, or far distance. Previously the journey towards release might well have been long - indeed of uncertain length. After the making of the punishment part order, the length of the appellants' journeys remains uncertain; the difference is that Mr Flynn could not, and the others cannot, even set out on those journeys until considerably later. On any realistic view they have been substantially prejudiced by what has happened.
- For the most part the previous system proceeded on the basis of administrative practices that had grown up within a broad statutory framework. The prejudice to the appellants would therefore be less real if, in the absence of statutory rights, they had been unable to rely on the Parole Board reviewing their cases on the specified dates. But that is far from so. Provided that they had behaved themselves, the Parole Board would have followed their usual practice and held the hearings at or about the specified dates. The appellants, who were undergoing various training schemes with a view to eventual release, could rely on the Parole Board sticking to the dates that they had announced. In these respects the appellants were, of course, in a different position from life prisoners who had not yet been given a date for a Parole Board hearing.
- All this changed for the appellants when the Act came into force in October 2001. It amends the 1993 Act. Under section 2(2) of the 1993 Act, as amended, a court which imposes a life sentence must now make an order that subsections (4) and (6) shall apply to the 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) ..."
Subsection (2) then goes on to specify a number of factors which the court must take into account when making the order. The effect of the order is that, after serving the punishment part, the prisoner can require the Scottish ministers to refer his case to the Parole Board and if, after due consideration, the Parole Board direct the ministers to release the prisoner on licence, they must do so. Taken together, these provisions create a system under which the time to be served as a punishment is determined by a judge and the power to direct the prisoner's release is vested in the Parole Board, an independent body of a judicial character. In this way the legislation aims to give effect to the prisoners' article 5(4) and 6(1) Convention rights. Since the Act is not intended to increase the time to be served in custody, prisoners sentenced after 8 October 2001 should only benefit from its operation. In practice that depends on the length of the punishment parts set by the judges.
- Of course, there were many prisoners, including the appellants, serving life sentences in Scotland when the Act took effect. Provision is made for them in Parts 1 to 5 of the Schedule introduced by section 4 of the Act. Part 1 deals with all "existing life prisoners" but for present purposes it has to be read along with Part 2, dealing with "existing designated life prisoners", and Part 3, dealing with "existing life prisoners recommended for release". The appellants do not fall into Part 2 or 3, but they would appear to fall into the class of "existing life prisoners" in Part 1. The crucial paragraph is paragraph 13 but, as I explain in due course, paragraph 14 helps in interpreting it. In terms of paragraph 12 there is to be a hearing at which the High Court of Justiciary shall make the order referred to in paragraph 13. Paragraph 13 then provides:
"13. That order is an order specifying a part of the sentence which the court considers would have been specified as the punishment part under subsection (2) of section 2 of the 1993 Act had that section, as amended by this Act, applied to that prisoner at the time he or she was sentenced.
14. It shall not be a ground of appeal in relation to the part of the sentence specified in the order made under paragraph 12 above that the court had regard to any certificate as is referred to in paragraph 1(b) above or to any recommendation made under section 205(4) of the 1995 Act as to the minimum period which should elapse before the Scottish Ministers release the prisoner on licence."
The general effect of paragraphs 12 and 13 is to create a mechanism by which a High Court judge can make the same kind of order for existing life prisoners as is to be made for prisoners convicted after the Act comes into force. In this way the judge fixes the time the prisoners must serve in prison as a punishment, the Parole Board can direct their release and, it is hoped, their article 5(4) and 6(1) Convention rights are respected.
- There is a presumption that, when it comes into force, legislation is not intended to impair people's vested rights. If the presumption prevails, the effect is that the new legislation does not apply to the vested rights which survive under the pre-existing law. But the presumption is rebutted if it is clear that the legislature intends the new law to apply, even though it impairs the rights in question. I discussed the authorities and the conclusionary nature of the concept of vested rights in Wilson v First County Trust Ltd (No 2)  UKHL 40;  3 WLR 568, 623625, paras 193198. For present purposes I assume, without deciding, that under the previous system the appellants had, in effect, a legitimate expectation amounting to a vested right to a Parole Board hearing on or about a particular date. This is a somewhat generous assumption, both because of the decision in In re Findlay  AC 318 and because, in some cases at least, the appellants' hearings were actually cancelled before the Act came into force.
- In any event, on that hypothesis there is a rebuttable presumption that Part 1 of the Schedule is not intended to apply to prisoners in the appellants' position since it destroys their vested right to a hearing. Plainly, however, the presumption is displaced in this case. The appellants fall squarely within the language of the Schedule. More importantly, if the Schedule did not apply to them, they and many other life prisoners would be outside the scope of the Act; the determination of their release date would still be in the hands of the executive rather than of a judicial body; and their article 5(4) and 6(1) Convention rights would still be violated. A construction which produces that result is untenable when the purpose of the Act is to secure the Convention rights of all life prisoners. It follows that all the relevant provisions of Part 1 of the Schedule apply to the appellants as they do to any other existing life prisoner without a designating certificate or provisional release date. The court cannot pick and mix among the provisions enacted by the Parliament so as to concoct a special scheme to meet the appellants' particular situation.
- The fact that the legislation applies to the appellants does not mean that any expectation that they had of a Parole Board hearing under the previous system is automatically irrelevant. It may still be a factor to be taken into account when applying the new legislation to their cases. The reports prepared for the appeal court by the judges who fixed the appellants' punishment parts show, however, that they regarded this factor as irrelevant to the paragraph 13 exercise because the Parole Board hearings had been arranged after the life sentence was imposed. This interpretation of the wording of paragraph 13 finds support in the decision of the appeal court in Stewart v HM Advocate 2002 SLT 1307. The appellants' arguments that the legislation is incompatible with their Convention rights also started from the assumption that, properly interpreted, paragraph 13 precludes any consideration of the arrangements made by the Parole Board. Indeed the appellants were said to be victims for the purposes of section 100(1) of the Scotland Act 1998 because of the inevitable risk of prejudice built into a legislative scheme that excluded the hearing dates from the court's consideration.
- Those seeking to strike down legislation always strive to portray it in the least favourable light and, somewhat paradoxically, adopt the construction which is most adverse to them. For that very reason the Board must take care to interpret the relevant provisions for itself. Only then can it decide whether, properly interpreted, they are within the competence of the legislature. In carrying out this necessary exercise the Board is not, of course, bound by any interpretation placed on the legislation by the lower courts.
- In Murray v HM Advocate 2000 JC 102 the appeal court had to consider whether a designated part which the Lord Justice General had fixed for an under-eighteen life prisoner under section 16(2) of the 1997 Act was excessive. As with paragraph 13, the Lord Justice General had to certify his opinion as to the period which the sentencing court would have fixed if section 2 of the 1993 Act had been in force at the date of sentence. Giving the opinion of the appeal court, Lord Justice Clerk Cullen said, at p 107GH, that the hypothesis in section 16(2) meant that:
"any indications which have been given during the intervening period since then to the effect that the prisoner is to be considered for parole at one stage or another cannot be directly relevant, since that information could not have been available to the court at the date when sentence was imposed."
This formulation seems to acknowledge that dates for parole hearings might be relevant to the Lord Justice General's determination, even if not "directly" so.
- In Stewart v HM Advocate 2003 SLT 1307 the prisoner's suitability for release would have been reviewed by the Parole Board after he had served 10 years in custody. The court fixed a punishment part of 14 years. The prisoner appealed and argued inter alia that it was open to a court which was concerned with fixing a punishment part to consider its practical effect on the prisoner's expectation of being considered for release. The court rejected that submission. The Lord Justice General (Cullen) said, at pp 13091310, para 13:
"In considering this submission it is important to bear in mind that under para 13 of the Schedule to the 2001 Act, the question is what would have been specified as the punishment part if the new statutory provisions had been in force at the time when the accused was sentenced. It follows that matters which were not known at that time cannot properly be taken into account (cf Murray v HM Advocate[, at p 107]). Accordingly, in our view, the prior arrangements for considering whether the appellant should be released on licence should not be taken into account in the fixing of a punishment part. We can well appreciate that the latter may well cut across these arrangements. However, the need, if any, for the modification of the new statutory provisions on that account was a matter for the legislature."
In this passage the court acknowledges the problems caused by a mismatch between the previous arrangements for Parole Board hearings and the punishment part fixed by the court. Nevertheless, while referring to Murray, it adopts a construction of paragraph 13 which goes further than Murray in ruling out the possibility of taking any account of the Parole Board arrangements. The court followed the decision in Stewart in McCreaddie v HM Advocate 2002 SLT 1311, 1312, paras 3 and 4.
- It appears that the appeal court would adopt the same interpretation in the present case since the Lord Justice General recites counsel's argument based on Stewart without comment, 2003 SLT 954, 966A - B, para 63, and also holds, at pp 963-964, para 46:
"The communication to a prisoner such as the appellants of information as to the stage at which his case would be reviewed, or further reviewed, by the Parole Board might have founded a successful challenge to the ministers' alteration of this where there was no change of policy or misbehaviour on the part of the prisoner. However, that appears to me to be neither here nor there since the legislature has superseded the previous system with a new one and has made provision as to the extent to which steps taken under the previous system should be taken into account in its transitional provisions. ... However, the granting of such rights [to a judicially determined punishment part] involves the introduction of decision-making by judges who are independent of the executive and its advisers. This carries with it the possibility that what judges consider to be an appropriate punishment part would exceed the period which had been expected to elapse under the previous system before the case went to the Parole Board for review or further review."
- I respectfully agree that the transitional provisions carry with them the ultimate possibility of the judges setting a punishment part that makes for a later review than had been anticipated under the old system. This does not mean, however, that the legislature intended the court to disregard an existing review date when fixing the punishment part. Paragraph 13 has to be interpreted in a slightly wider context.
- Paragraph 13 resembles paragraph 6(1) of schedule 6 to the 1993 Act and section 16(2) of the 1997 Act, both of which are now repealed. All three require the judge to assess what order the court would have made if the provisions in question had been in force when the prisoner was sentenced. Perhaps inevitably, a judge who is asked to apply such a section and to make a decision that would have been made at an earlier date will tend to wonder what factors he can legitimately take into account. In some provisions of that kind, the legislature will have had a particular reason to choose an exact date in the past, e g because of some change in a tax rιgime. In that event it may well be crucial to focus on the situation at that precise date and to exclude from consideration any subsequent events or developments. Paragraph 13 is not of that kind: it does not refer back to a single date in the past but requires the court to fix the punishment part that the trial court would have fixed when the prisoner was sentenced and the date of sentence will vary from prisoner to prisoner. This suggests that the purpose of the legislature in choosing the date of sentence was one of legislative economy. By this elegant device the draftsman can apply to transitional cases the same provision in section 2(2) of the 1993 Act as is to be applied to prisoners sentenced after 8 October 2001. Moreover, the resulting punishment parts for the transitional cases will be exactly comparable to the punishment parts for new cases. If another date had been chosen, the "punishment part" would have been a different entity.
- If the legislature had attached great significance to the precise situation at the time when the trial judge would have exercised his hypothetical power to fix the punishment part under section 2(2), then one would have expected to find that the court could not take into account anything which occurred after that date, or which on the hypothesis that section 2(2) applied - would not have occurred by the time the sentence, including the punishment part, was pronounced. Examination of the relevant provisions reveals a significantly different picture.
- First, paragraph 14 indicates that it is legitimate for the court, when specifying the punishment part, to have regard to any minimum recommendation made under section 205(4) of the Criminal Procedure (Scotland) Act 1995. The trial judge can only fix a punishment part under section 2(2), however, in a world where section 205(4) has been repealed and minimum recommendations do not exist. So, on the purest application of the hypothesis in paragraph 13, the minimum recommendation actually made by the trial judge could not be taken into consideration since it would never have been made. Despite this, according to paragraph 14, the court fixing the punishment part is entitled to have regard to any minimum recommendation - even if this is unfavourable to the prisoner.
- Secondly, paragraph 14 deals with those cases where discretionary or under-eighteen life prisoners, who have already had the benefit of a designated part fixed by the Lord Justice General under the previous system, decide to take a gamble on the court fixing a shorter punishment part. They cannot then appeal against the resulting punishment part on the ground that, in fixing it, the court had regard to the Lord Justice General's designating certificate. What matters for present purposes is that since, by definition, the certificate would have been issued after the date of sentence, it is something which could not have been taken into account at that date. So again the hypothesis in paragraph 13 is not applied in a strict fashion. The certificate can be considered - even if the result is unfavourable to the prisoner.
- Thirdly, under section 2(2)(c) of the 1993 Act, in determining the punishment part, the court is to take into account, where appropriate, the matters mentioned in section 196(1)(a) and (b) of the Criminal Procedure (Scotland) Act 1995. That provision, relating to early guilty pleas, was only introduced into Scots law by section 33 of the Criminal Justice (Scotland) Act 1995. So it could not have applied when a judge was imposing a life sentence before April 1996. None the less the court may take these matters into account when fixing the punishment part for prisoners sentenced before then. This is a further indication that wider considerations are allowed to intrude into the hypothetical world.
- These provisions tend to confirm that paragraph 13 is simply a mechanism by which the court, sitting after 8 October 2001, determines what part of the life sentence is "appropriate" to satisfy the requirements for retribution and deterrence in the case of prisoners sentenced before then. The legislature expressly contemplates that, in carrying out that exercise, the court may have regard to various matters that would not have existed at the date of sentence. It may well be that, in the absence of any provision corresponding to paragraph 14, the court cannot take account of other such matters that would work to the prisoner's disadvantage. But at least some other favourable matters can surely be taken into account. For example, it could lead to great injustice if a rigid interpretation of the terms of paragraph 13 meant that the court could not consider general character references from people who first got to know the prisoner during his sentence and so could not have provided references at the date of sentence. Similarly, it would be going too far to exclude medical reports about a pre-existing condition on the ground that they were based on diagnostic techniques that had not been developed at the date of sentence. Paragraph 13 is designed to serve, not to frustrate, the interests of justice.
- The designated parts fixed by the Lord Justice General for discretionary and under-eighteen life prisoners are so closely analogous to the punishment parts to be determined by the court under paragraph 13 that a prisoner for whom a part has been designated can waive his right to a punishment part hearing: paragraphs 7 and 29. It is therefore easy to see why the legislature envisaged that, if such a prisoner insisted on having a punishment part fixed, the court might find it useful to have regard to the designating certificate when fixing the punishment part. But it also envisaged that the court might find it useful to have regard to a minimum recommendation, even though it is not an indication of the appropriate period for punishment, but simply an indication of the minimum period that could be appropriate. The exercise which the Provisional Review Committee carried out when fixing the first review date is also not to be equated with determining the punishment part. Of course, one of the members of the Committee was a judge and its recommendations were regarded as a means for the Secretary of State and Scottish ministers "to obtain an initial judicial view on the requirements of retribution and deterrence". But the first review date may have been postponed because the prisoner was a continuing risk. Or else it may have been fixed on the view that he was unlikely to be ready for release for some time afterwards and by then he would have served long enough for punishment. So the recommendation might not indeed be "directly" relevant in fixing the punishment part, as the appeal court said in Murray 2000 JC 102, 107G H. None the less, after making due allowance for the differences, the court could well derive help from an expert recommendation which had been accepted by the Secretary of State or Scottish ministers. So long as this would not lead to a longer punishment part being fixed, the recommendation is a factor to which the court can have regard. The same applies to the dates for later hearings.
- Since the duty of the court is to determine the appropriate punishment part, a review date is nothing more than one factor to be taken into account. But in weighing all the relevant factors, it would be artificial to have regard to the review date without also having regard to the fact that the prisoner will actually have relied on it. To leave that out of account altogether is to depart from the standards of substantial justice to the individual prisoner which courts apply when imposing sentence. So, for example, if a judge defers sentence for six months to see if an offender can be of good behaviour, any judge who then sentences him should take his good behaviour into account. In such circumstances it is unjust to ignore the offender's expectation that he would be treated more leniently. McPherson v HM Advocate 1986 SCCR 278 is an example of that general approach. Similarly, in deciding what weight to attach to any dates for Parole Board hearings, the court should not leave out of account the fact that the prisoner will not only have relied on those dates but will have done so with every encouragement from the authorities responsible for administering his sentence and, ultimately, for ordering his release. This does not mean that the court cannot fix a punishment part that postpones the application of subsections (4) and (6) of section 2 of the 1993 Act beyond the dates previously fixed for the Parole Board hearings, but it does mean that, in deciding what is appropriate, the court should take due account of the fact that the prisoner will have been relying on those earlier dates.
- I reach this conclusion by the ordinary process of interpreting the Act. My noble and learned friends, Lord Hope of Craighead and Baroness Hale of Richmond, reach the same result in a different way. They consider that there is a potential incompatibility between paragraph 13, as interpreted by the appeal court, and the appellants' article 7(1) Convention rights. To avoid that risk, they rely on section 101(2) of the Scotland Act 1998, as reinforced by section 3(1) of the Human Rights Act 1998, to underpin what amounts to the same interpretation of paragraph 13.
- I am not persuaded that article 7(1) is engaged in the circumstances of these appeals. In terms of article 7(1) the critical matter is the penalty that was applicable at the time the criminal offence was committed. Under the old system there was no constraint on the length of the period that the Preliminary Review Committee could fix, for the purposes of retribution and deterrence, before the first review. It is therefore not possible to say, in terms of article 7(1), that any particular punishment part is "a heavier penalty 'than was' applicable at the time the [murder] was committed." Under paragraph 13 the appellants are liable to be required to serve a longer period than would have been likely, but not a longer period than would have been competent, before the first review under the previous system. That is not incompatible with article 7(1). Indeed, in reality, the appellants do not base their complaints on the penalty that they could reasonably have contemplated at the date of the murders. They argue, rather, that under the previous system a prisoner, for whom a hearing date had been fixed, had an expectation that the Parole Board would consider his case at or about that date. Their complaint and it is wholly understandable is that this expectation has been dashed and they will have to wait considerably longer for their next review.
- I turn to the appellants' submissions that paragraph 13 is incompatible with certain other Convention rights. I adopt the construction of paragraph 13 that I have just explained. In reality, the appellants' submissions face the formidable obstacle that the whole purpose of the Act is to secure prisoners' article 5(4) and 6(1) Convention rights which the previous arrangements violated. So it is hard to see any basis for the complaint that by applying the provisions in the schedule to the appellants the Parliament violated article 5(4) and 6(1) rights that had previously been respected.
- So far as article 5(1) is concerned, Mr Bovey QC submitted that the transitional provisions were arbitrary because it was unclear whether they would result in the appellants having to serve longer in prison. There are at least two objections to that contention. First, article 5(1) does not limit the period for which a person can be detained, provided that the detention is lawful. So the mere fact that the operation of the transitional provisions can result in the appellants being kept in prison for longer does not give rise to a violation of article 5(1). The Board rejected a somewhat similar argument under article 5(1) in A v Scottish Ministers 2002 SC (PC) 63. See, for example, the remarks of Lord Hope of Craighead, at p 75, para 41, and Lord Clyde, at p 85, para 69. Secondly, if the detention of a prisoner is not otherwise arbitrary according to the usual Convention criteria, it does not become arbitrary simply because one cannot tell whether it will last longer than it would have done under the system that has been superseded.
- Mr Bovey also advanced an argument based on a combination of articles 5, 17 and 53. The bottom line of the argument was that it is incompatible with article 5, when read with article 17, for the Parliament to pass legislation which could result in prisoners serving longer periods than under the pre-existing system. Article 5 contains no guarantee to that effect and there is nothing in article 17 which alters that - or indeed has any bearing on the question at all. Article 53 is not part of our domestic law and it too has no bearing on the point.
- Mr Bovey further argued that the provisions of the Schedule violate the appellants' right to a fair trial within a reasonable time under article 6(1) because they have the effect of opening up the case and amending the sentence many years later. This is a highly artificial argument since the original proceedings were completed within a reasonable time for the purposes of article 6(1). Since then, in Convention rights' terms, the appellants' position has been governed by article 5(1)(a) and (4). In any event it is now accepted that in terms of article 6(1) the determination of the period to be served by the appellants as a punishment should have been made by the judge as part of the trial and not by the Scottish ministers. The legislation and the punishment part hearings under paragraph 13 are designed to cure this violation. Since the punishment part proceedings themselves have not violated the reasonable time guarantee in article 6(1), there is no basis for holding that, overall, that guarantee has been breached in these cases. Similarly, the application of the Schedule to the appellants does not breach the equality of arms guarantee in article 5(4) or 6(1) since the schedule is designed to put the determination of the appellants' punishment into the hands of the judiciary, not to influence any pre-existing judicial determination of their punishment. See, for example, Zielinski v France (2001) 31 EHRR 532, 551, para 57.
- Existing life prisoners were not all in exactly the same situation when the Act came into force. The Act allows for this by making different, and very detailed, provisions that apply the new policy so as to fit their different situations. In particular, under paragraph 7 of the Schedule two classes of life prisoners are allowed to waive their right to have a punishment part fixed, provided that they first take legal advice. In effect, they are waiving their article 5(4) and 6(1) Convention rights. The first class comprises prisoners for whom the Lord Justice General has issued a designating certificate. They can choose to waive their right to a punishment part hearing and, if they do, they fall within Part 2 and the period in the certificate is treated as the punishment part: paragraph 29. The second group is made up of prisoners for whom the Parole Board had already recommended a release date and to whose release the Lord Justice General had not objected. They were allowed to waive their right to a punishment part hearing and in that event they fell under Part 3. If the Scottish ministers had already fixed a provisional release date, they were to be released on that date: paragraph 33. If the Scottish ministers had not fixed a provisional release date, they were to be released on the release date recommended by the Parole Board: paragraph 41.
- Mr Bovey argued that it was incompatible with article 14 for the Parliament to give the prisoners covered by Part 3 a right to waive their entitlement to a punishment part hearing, but to deny such a right to prisoners, like the appellants, for whom Parole Board hearings had been arranged. For the sake of the argument I assume that article 14 is engaged. In my view the differences between the two classes of prisoner are more than sufficient to justify the legislature giving a right of waiver to one group and not to the other.
- Prisoners with designating certificates or provisional release dates are distinguished by the fact that the appropriate period for their punishment has been determined, in effect by the Lord Justice General. If they wish, they can obtain a fresh judicial determination by exercising their right to have a punishment part fixed. But they may be content with the period which they have been given or, at least, they may not wish to run the risk that the punishment part turns out to be longer. If they settle for the period already fixed, they waive their right to a judicial determination of the period of punishment under article 6(1). Then the relevant provisions in Parts 2 and 3 operate so as to secure their release in accordance with the Parole Board recommendation. Their article 5(4) Convention right is respected. So there is no breach of the Convention.
- By contrast, prisoners in the appellants' position have not had any punishment period fixed. If they were allowed to waive their right to a punishment part hearing, the punishment period would still have to be fixed perhaps by the Lord Justice General, as under the old system, without any right for the prisoner to be represented. Paragraph 13 avoids the risk of any conceivable challenge to that procedure under article 6(1): Smith and Dudson v Secretary of State  EWCA Civ 99, paras 77 92 (where the challenge was rejected). Moreover, unlike the Part 2 or 3 prisoners, if they waived their right to a hearing, they would be taking a gamble on an unknown punishment period. There is no reason to think that it would necessarily be shorter than the punishment part that would be fixed under paragraph 13. These considerations more than justify the legislature in treating the appellants like the other life prisoners in respect of whose punishment the judiciary have not expressed a final view: their punishment should be determined by a judge in open court. There is no conceivable breach of article 14.
- For these reasons, which I conceive to be substantially the same as those of my noble and learned friends, Lord Bingham of Cornhill and Lord Carswell, I am satisfied that the provisions in Part 1 of the Schedule to the Convention Rights (Compliance) (Scotland) Act 2001 are within the competence of the Scottish Parliament. I would accordingly dismiss the appeals.
Baroness Hale of Richmond
- The Convention Rights (Compliance) (Scotland) Act 2001 was passed with the best of intentions. The Scottish Parliament anticipated the decision of the European Court of Human Rights in Stafford v United Kingdom (2002) 35 EHRR 1121, that the system in England and Wales for determining the time spent in prison by mandatory life prisoners was incompatible with the European Convention on Human Rights. Although the Scottish system was different, it was open to the same two challenges as the English. Insofar as the time spent in prison was designed to reflect the requirements of retribution and deterrence, this was a sentencing function which article 6(1) required should be part and parcel of the trial process. Insofar as it was designed for the continued protection of the public even after the period required for retribution and deterrence had elapsed, article 5(4) required periodic review by an independent and impartial tribunal empowered to direct the prisoner's release if it was safe to do so. The new system introduced by the 2001 Act was designed faithfully to reflect this.
- It was also designed, as it had to be, to extend the benefit of the new system to those already serving such sentences. The system was no less an infringement of their Convention rights under articles 6(1) and 5(4) than it was for people to be sentenced in future. Parliament expected the effect of the transitional provisions to be neutral. We were told that of the 455 transitional mandatory life prisoners, 67 (a surprisingly high figure) had had a minimum term recommended; of these, 28 had their punishment part fixed at the same length, 24 at a lower length, and 15 at a higher. Thus for at least 24 of these prisoners the new system has worked to their benefit. The same is potentially true of the 98 prisoners who had already served longer in prison than the punishment part set for them.
- The problem before us concerns those prisoners for whom the new system has so far - that is, until their appeals against their punishment parts are determined - worked to their detriment. The detriment is clear and has been graphically described, in particular by my noble and learned friend, Lord Rodger of Earlsferry at para 64 above. There is every reason to believe that this was an effect unintended by the Scottish Parliament. They were legislating to protect human rights. Whatever the precise requirements of the European Convention, it offends against the basic principles of fairness to change the rules in such a way that a serving prisoner will have to spend longer in prison than he would have done under the old rules. This was recognised when England and Wales rather belatedly set about legislating to comply with Stafford. The transitional provisions in the Criminal Justice Act 2003, Schedule 22, para 3, provide that the tariff set by the judge for an existing prisoner must not be greater than a previously notified tariff set by the Home Secretary. It is clear, from statements made by Baroness Scotland at the Committee stage in the House of Lords, that the issues of retrospectivity and compatibility with article 7 had been considered when drafting these transitional provisions.
- The essential reason why the detriment to these appellants offends against basic principles of fairness is the retrospectivity: the rules of the race have been changed after the runners have set off along their journey. Hence the natural place to look for guidance is in article 7 of the Convention, entitled "No punishment without law", the second sentence of which reads: "Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed". For the reasons given by Lord Rodger, I agree that none of the other arguments advanced under the Convention is apt to meet the problem presented by these cases.
- It is completely unrealistic, as the European Court of Human Rights has recognised in Stafford (echoing earlier comments in Weeks v United Kingdom (1987) 10 EHRR 293, 307, para 40), to regard the "penalty
applicable" at the time these murders were committed as a sentence that the offender be imprisoned for the rest of his life. It was a sentence that the offender be imprisoned for such period, up to the end of his life, as the relevant minister would decide, and remain subject to a risk of recall thereafter. There was no statutory minimum period. The minister could not release the prisoner without the recommendation of the Parole Board or consultation with the judiciary, but in principle that could happen at any time. The new arrangements introduce a minimum period which (save in exceptional circumstances that do not apply here) must be served before the prisoner can be released. That minimum period is actually termed a 'punishment part'. There is thus no difficulty in recognising it as a 'penalty', according to the criteria laid down in Welch v United Kingdom (1995) 20 EHRR 247, 262, para 28: it is imposed following conviction for a criminal offence, its nature and purpose are expressly punitive, it is made according to the procedures applicable for imposing a criminal penalty, and implemented as part of a sentence of imprisonment. It is also self-evidently a penalty which was not legally applicable at the time when these murders were committed. It is not inevitably "heavier" than the penalty that did apply then, but it is certainly capable of being so. The risk of laws being applied in such a way as to violate Convention rights is normally sufficient to found a complaint: see Benjamin and Wilson v United Kingdom (2002) 36 EHRR 1. If a mandatory sentence of life imprisonment had been imposed retrospectively in place of a fixed term of, say, 30 years, it would be no answer to say that it might not turn out to be heavier in the end.
- This conclusion does not cast doubt upon the validity of sentencing guidelines which may indicate that the existing applicable sentence is to be applied in a more severe way than had been the previous practice. Here we have a formal legislative change to the applicable sentence. Nor does this conclusion accept the argument advanced on behalf of the appellants that the "penalty applicable" refers to the penalty in fact applied to the individual offender. We are here concerned with a brand new compulsory component in the penalty legally applicable to murder.
- For those reasons, I share the view of my noble and learned friend, Lord Hope of Craighead, that the transitional provisions in the Schedule to the 2001 Act, 'could be read in such a way as to be outside competence' for the purpose of section 101(1) of the Scotland Act 1998. Indeed, they have been so read, in the decision in Stewart v HM Advocate, 2002 SLT 1307 applied in the cases under appeal, that later events cannot be taken into account in fixing the punishment part. We are therefore enjoined by section 101(2) to read them "as narrowly as is required" for them to be within competence, if such a reading is possible. But we would also have this obligation by virtue of section 3(1) of the Human Rights Act 1998. This requires, not only that legislation be read in a way which is compatible with the Convention rights, but also that it be "given effect" in that way.
- Lord Hope and Lord Rodger have clearly demonstrated how it is possible to read the provisions of Part 1 of the Schedule to the 2001 Act, and in particular paragraph 13, so as to permit the court which fixes the punishment part to have regard to the progress towards release already made by the prisoner. Once that is possible, the punishment part considered "appropriate" under section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993 can be fixed so far as possible to secure that the provisions do not operate to the prejudice of the prisoner.
- What does that mean in practice? It is the setting of a new date before which the prisoner cannot be released which is the potentially heavier penalty. It follows that the new date should be set having regard to the earliest date on which he might realistically have been released under the old system. It can do no more than that because of the uncertainties in the old system which the new one is, quite rightly, seeking to correct. But if this means that the punishment part will expire at or not long after the date which had been fixed for his next or first Parole Board hearing, even though the views of the judiciary had not yet been sought on whether the requirements of retribution and deterrence had been met, this should not cause real concern, because the system is still designed ensure that he is not released until it is safe to do so (and at that stage there is no bright line between punishment and protection because the nature of the offence and his response to it are important elements in assessing risk).
- That interpretation and approach to the implementation of the legislation being possible, I agree that the legislation is within competence and these appeals must be dismissed.
- I have had the advantage of reading in draft the opinions of my noble and learned friends Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Rodger of Earlsferry and Baroness Hale of Richmond. I agree with their conclusion that the appeals should be dismissed, but since the reasons which they have expressed in the course of reaching that conclusion vary somewhat, I wish to follow my own route to the same end.
- I entirely agree with my noble and learned friends that the transitional provisions in Part 1 of the Schedule to the Convention Rights (Compliance) (Scotland) Act 2001 (the 2001 Act) should if possible be construed so as to have a neutral effect on the prisoners affected by them, that is to say, the procedures specified in the Schedule should not operate in a significant way to the disadvantage of prisoners in the position of the appellants.
- This conclusion can be reached by the ordinary process of construing the 2001 Act, as Lord Rodger of Earlsferry has done. I agree that it is open to the High Court of Justiciary, when making the orders specified in paragraph 13 of the Schedule to the 2001 Act, to take account of events which have occurred after the time when the prisoner was sentenced. In particular, it would be entitled to take into account the progress that the prisoner has made under the pre-existing system and to have such regard as it thought fit to his reasonable expectations of a probable release date, in the light of the history of consideration of his case by the PRC, the Secretary of State or Ministers and the Parole Board.
- One of the planks of the appellants' argument in urging this conclusion upon the Board was their contention that if the legislation were not construed as we have done, paragraph 13 of the Schedule to the 2001 Act would be incompatible with the rights secured by the second sentence of article 7(1) of the Convention, which provides:
"Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed."
Their reasoning in advancing this contention was that the word "applicable" should be given the meaning "likely to be imposed" rather than "available", in the sense that it was a sentence which could have been imposed. They put forward the proposition that when the Secretary of State or Ministers, after receiving the recommendation of the PRC, referred the case of a prisoner to the Parole Board that was in effect fixing the punishment period of a life sentence. The appellants' counsel drew the conclusion that if the High Court of Justiciary fixed a punishment period under the provisions of the Schedule to the 2001 Act at a longer period than that which they could reasonably have expected once their cases had been referred to the Parole Board under the former system, that was in breach of article 7(1) of the Convention.
- I should be prepared to accept that the process of reference to the Parole Board could be regarded as fixing the punishment period. I should not be willing, however, to accept the first premise of the appellants' argument, dependent on their construction of the material sentence of article 7(1). I agree with the other members of the Board that it is not realistic to treat a life sentence as a sentence of imprisonment for the whole of the defendant's life. Virtually all such prisoners are released within a period of years and both the European and English case law have now made it clear that the fixing of the punishment period or tariff is to be regarded as a sentencing process in itself. I am unable, however, to accept the construction of article 7(1) propounded by the appellants. It seems to me difficult to escape the conclusion that the meaning of the provision is that the penalty which was "applicable" at the time the criminal offence was committed is that which a sentencer could have imposed at that time, ie the maximum sentence then prescribed by law for the particular offence. I may observe in passing that resort to the French text of article 7 is of little avail, since the word used is "applicable", which does not throw any further light on the draftsman's intention. The object of the provision appears to have been to prevent a sentence being imposed which could not have been imposed at the time of the offence, because the maximum was then lower. One may see the operation of this principle clearly in the case of indecent assault on a woman, the maximum sentence for which was increased from two years to ten years by the Sexual Offences Act 1985. Persons convicted after that Act came into operation of indecent assaults committed before that date could not be sentenced to the longer period of imprisonment. It seems to me that other interpretations fail to give due effect to the reference in article 7(1) to the time when the offence was committed, not when sentence was passed.
- At the time when the offence in each of the cases before us was committed the only sentence which it was open to the court to impose, as judges constantly said when sentencing for murder, was imprisonment for life. If that was the penalty "applicable" at that time, then no disposition since then has brought about any increase in it. I do not derive any assistance from an approach which divides a life sentence into a punishment period and a risk period. If the sentencing court had been empowered to fix a punishment period at the time of passing sentence, it would have been open to it to fix any term of years which appeared appropriate. Similarly, if one takes the time when the Secretary of State or Ministers referred the case to the Parole Board for review, that could have been done at whatever time was considered appropriate, taking into account the considerations of retribution and deterrence. On such an approach that would have determined the applicable penalty, and in fixing a punishment period under the 2001 Act the High Court of Justiciary had a similarly large discretion, so that the term fixed by it was not a "heavier penalty". It is hardly necessary to point out that to approach the matter in this way one has to attribute to the sentencing court a power which it did not then have and to disregard the significance of the reference in Article 7(1) to the time the criminal offence was committed.
- For the reasons which Lord Rodger of Earlsferry has set out in his opinion, I consider that it would be extremely difficult to apply a test based on the approach proposed by the appellants. Moreover, if it were generally applied, it could lead to considerable problems in many areas of sentencing.
- For the reasons which I have set out I should be unwilling to hold that paragraph 13 of the Schedule to the 2001 Act is incompatible with the rights secured by article 7(1) of the Convention. In any event, I do not think that it is necessary so to hold, in the light of the construction of paragraph 13 which all the members of the Board have adopted. The application of the Act is a matter for the High Court of Justiciary, which must be free to adopt its own approach, but it would in my own view be open to it on an appeal against sentence to take into account matters which post-date the passing of the original life sentence in any case. How much, if any, weight it would attribute to the prisoner's expectations founded on his having been given a date for the Parole Board review would be a matter for the High Court of Justiciary in any given case, as Lord Rodger of Earlsferry has set out.
- I also agree with Lord Rodger of Earlsferry, for the reasons which he has set out in his opinion, that the provisions of the Schedule to the 2001 Act do not violate any other provision of the Convention.
- I would therefore dismiss the appeals.