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You are here: BAILII >> Databases >> The Judicial Committee of the Privy Council Decisions >> Flynn & Ors v. Her Majesty's Advocate (Scotland) [2004] UKPC D1 (18 March 2004) URL: https://www.bailii.org/uk/cases/UKPC/2004/D1.html Cite as: 2004 GWD 16-360, 2004 SC (PC) 1, 2004 SCCR 281, [2004] HRLR 17, 2004 SLT 863, [2005] 1 Prison LR 154, [2004] UKPC D 1, [2004] UKPC D1 |
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Flynn & Ors v. Her Majesty's Advocate (Scotland) [2004] 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
v.
Her Majesty's Advocate Respondent
FROM
THE HIGH COURT OF JUSTICIARY
SCOTLAND
---------------
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 Carswell
------------------
Lord Bingham of Cornhill
____________________
Lord Hope of Craighead
"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
The pre-existing system
The transitional arrangements under the 2001 Act
"(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)."
"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."
"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."
"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.
"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."
The devolution issue
"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.
(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
"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.
Is another interpretation possible?
Conclusion
____________________
Lord Rodger of Earlsferry
"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.
"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.
"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 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.
"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."
__________________________
Baroness Hale of Richmond
________________________
Lord Carswell
"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.