CHAPTER ONE: HISTORICAL USE OF LIFE SENTENCESIntroduction
The sentence of life imprisonment is available as the maximum penalty for all common law and certain statutory crimes in Scotland. In cases of murder following the Murder (Abolition of Death Penalty) Act 1965 the penalty of life imprisonment is mandatory and upon conviction the sentencer cannot exercise discretion over the sentence irrespective of the circumstances of the offence. In other cases life sentences are rarely imposed.
In this report life sentence prisoners are considered separately under the headings of 'discretionary life' and 'mandatory life' sentences, 'discretionary life being the statutory term introduced under the Prisoners and Criminal Proceedings (Scotland) Act 1993 to distinguish life prisoners sentenced by the court to life from those whose life sentence is fixed by law. The terms 'discretionary' and 'mandatory' are used throughout the report to maintain this distinction. The term 'discretionary' is also used to describe life sentences imposed before the 1965 Act for offences other than murder.
Historical use of discretionary life sentences
Although a discretionary life sentence can technically be imposed upon conviction in the High Court of Justiciary for any common law crime and certain statutory offences, identifying discretionary life sentences imposed prior to 1963 (the year in which the first discretionary life sentence identified in the present research was imposed) is difficult. Published statistics do not consistently identify the number of life sentences imposed, rather they identify the number of sentences of penal servitude (up to 1950) or imprisonment in excess of 10 years imposed by the High Court. Convictions for murder which resulted in a life sentence appear in the category 'penal servitude (or imprisonment) for 10 years and above' and it is certain that at least some of those who received sentences in excess of 10 years for crimes other than murder will have received life sentences. In 1933, for example, one person was sentenced to death, but the conviction was quashed on appeal, a conviction of culpable homicide was substituted and a sentence of penal servitude for life imposed (Prisons Department for Scotland, 1934). Similarly, in 1938 one person is known to have been sentenced to penal servitude for life upon conviction of culpable homicide (Criminal Statistics Scotland, 1938).
It is equally certain that not all of the sentences of 10 years or longer were discretionary life sentences. Between 1934 and 1936 it is known that 4 people were sentenced to penal servitude of 10 years, one to 12 years and 2 to 15 years (Prisons Department for Scotland, 1935-1937). Similarly, in 1953 one person was sentenced to death but on appeal to the High Court, the conviction for murder was quashed and substituted by conviction for culpable homicide, for which a sentence of 20 years imprisonment was imposed (Scottish Home Department, 1954). Table 1 shows the number of offenders who received sentences of penal servitude or imprisonment of 10 years or above between 1925 and 1962.
TABLE 1: Number & Nature of Convictions Resulting in Sentences of 10 Years & Above 1925-1962
|SENTENCE||YEAR||Attempted Murder||Culpable Homicide||Rape||Assault with Intent To Ravish||Assault||Total|
|Servitude||1939-1945||Disaggregated figures not available||12|
|10 Years +||1946-1950||0||7||2||1||0||10|
|Imprisonment 10 Yrs +||1951-1962||2||26||0||0||1||29|
* 2 of these sentences are known to have been discretionary life sentences.
** 7 of these sentences are known to have been determinate.
Source: Criminal Statistics Scotland 1925-1962. Edinburgh: HMSO
The first discretionary life sentence prisoner whose records were identified for the present study was convicted in 1963 and was one of the 2 offenders who appear in the published statistics as having received sentences of imprisonment of 10 years or above for culpable homicide (Scottish Home and Health Department, 1964).
Historical use of mandatory life sentences
Statistics on the use of life sentences as the penalty for murder are more readily available. Until 1834 there were almost 30 capital crimes in Scotland (as opposed to 300 in England) but thereafter the number was reduced by statute (Stair Encyclopaedia, Volume 17, 562). The Criminal Procedure (Scotland) Act 1887 limited capital punishment to murder, attempted murder and treason. In reality, however, many of those who were convicted and sentenced to death, both in Scotland and in England and Wales, had their sentence commuted to life imprisonment by the exercise of the Royal Prerogative of Mercy on the advice of the Secretary of State. The Children Act 1908 imposed the first limitation on the use of capital punishment for murder by decreeing that young people under the age of 18 who were convicted of murder could not be put to death and must instead be sentenced to detention during His Majesty's Pleasure.
The Homicide Act 1957 abolished the death penalty for all murder except capital murder, i.e. murder committed in the course of furtherance of theft; murder by shooting or causing an explosion; murder in the course of resisting or avoiding arrest, aiding or assisting an escape from legal custody; murder of a police or prison officer in the execution of his duty or of a person helping him; and, murder by a person previously convicted of murder in Great Britain. The mandatory penalty for non-capital murder became life imprisonment.
The Murder (Abolition of Death Penalty) Act 1965 abolished capital punishment for all murder for an experimental period and made life imprisonment the mandatory penalty for all adult offenders (young offenders continued to be detained during Her Majesty's Pleasure). In 1969, after an experimental period of almost 5 years, Parliament determined that the Act should remain in force without limit of time. Thus, in the 8 years between 1957 and 1965 the penalty for murder went through substantial changes - before 1957 all convicted murderers over the age of 18 were sentenced to death; between 1957 and 1965 some murderers were sentenced to death while others were sentenced to life imprisonment; and, since 1965 all murderers have been sentenced to life imprisonment. Table 2 shows the number of convictions for murder in Scotland between 1900 and 1996. The figures exclude those who were found to be insane either at the time of the offence or at the time of trial.
TABLE 2: Sentences Imposed on Offenders Convicted of Murder 1900-1996
|YEAR||HMP*||Death||Executed||Commuted to Penal Servitude||Life |
* Under the terms of the Criminal Procedure (Scotland) Act 1975 the sentence of detention at Her Majesty's Pleasure was replaced by the sentence of detention Without Limit of Time. Young people in Scotland who are convicted of murder while under 18 years of age now receive this sentence.
** Figures relate to the periods 1900-1907 and 1925-1956 only. Figures for the period 1908-1925 are not available.
Sources: Scottish Home and Health Department, 1972; and, Criminal Justice Statistics
The penalty for murder has been the subject of considerable debate since the abolition of the death penalty in 1965. Re-introduction of the death penalty has been voted on by Parliament on no fewer than 10 occasions and the appropriateness of the mandatory sentence of life imprisonment has been considered by a number of committees including the Emslie Committee (Scottish Home and Health Department, 1972) and the Nathan Committee (House of Lords, 1989). (See also Prison Reform Trust, 1993 and Justice, 1996.) [ The Human Rights Bill contains provisions which, if enacted, would require the UK Government to ratify the Sixth Protocol to the European Convention on Human Rights, requiring abolition of the death penalty other than in times of war.]
Both the Nathan Committee and the Prison Reform Trust's Committee, Chaired by Lord Lane, argued strongly in favour of the abolition of the mandatory life sentence for murder on the basis that
"Murders differ so greatly from each other that it is wrong that they should attract the same punishment. The right way to deal with this matter is .... to give the judge a discretion to impose a sentence appropriate to the particular offence, taking into account all the relevant circumstances."
(House of Lords, 1989 pg. 50)
It is interesting to note that during the Parliamentary proceedings on the Murder (Abolition of Death Penalty) Bill an amendment was carried which would have allowed the trial judge to impose any sentence he thought proper, thereby doing away with the mandatory life sentence. After opposition by the Government, however, the amendment was replaced by a provision (section 1(2)) giving the trial judge power, if he so wished, to make a public recommendation as to the minimum term the prisoner should serve in custody before release on licence (Prison Reform Trust, 1993).
When it reported in 1989, the Nathan Committee recommended the abolition of the mandatory life sentence but the Government of the day chose not to seek to implement the recommendation, on the grounds that murder should be regarded as a unique offence demanding a life for a life (JUSTICE, 1996).
Thus, the penalty for murder remains a mandatory life sentence and while the judge may in Scotland, under section 205(4) of the Criminal Procedure (Scotland) Act 1995, make a minimum recommendation in open court as to the length of time to be served, he or she is under no obligation to do so.
The length of time served in prison under life sentences
Since 1965 the system for determining the time served under life sentences has evolved, in response to a number of legal challenges, into a reasonably structured and open one. All life sentence prisoners now serve a minimum period of imprisonment of a length regarded as being appropriate to satisfy the demands of punishment and deterrence. Once the minimum period has been served the actual point of release for discretionary life sentence prisoners will be determined by the Parole Board and, in the case of mandatory life sentence prisoners, by the Secretary of State for Scotland, on the basis of an assessment of risk. Only when the prisoner is deemed no longer to pose a risk to the public will he (or she) be released and, even then, he will be subject to a life licence which can be revoked at any time resulting in recall to prison should his behaviour give cause for concern for the safety of the public. The supervision requirements of the licence may be lifted at the discretion of the Secretary of State, normally once the offender has achieved 10 trouble free years in the community.
The role of the Secretary of State in determining the length of the minimum period required to meet the needs of punishment and deterrence and, therefore, in determining the point at which life sentence prisoners are released has been subject to criticism. The Home Affairs Select Committee (1996) took the view that although there might be reasons for maintaining the mandatory life sentence, the role of the Home Secretary (and by implication, the role of the Secretary of State for Scotland) in 'tariff' fixing and release should be removed. This view concurred with those of the Lane Committee (Prison Reform Trust, 1993) and Justice (1996). Indeed, even the 1972 Emslie Committee, while not going so far as to recommend that the role of the Secretary of State in deciding upon release should be removed, recommended that the court should, save in exceptional circumstances, be required to make a minimum recommendation in open court which should be appealable by the offender. This proposal was incorporated into the 1979 Criminal Justice (Scotland) Bill but an amendment was carried at Report Stage deleting the mandatory requirement.
The role of the Home Secretary in determining the point of release has been subject to a number of legal challenges. The judgements of the European Court of Human Rights in the cases of Weeks and Thynne, Wilson andGunnell resulted in legislative changes to the procedures governing the release of discretionary life sentence prisoners. The rulings determined that both the punitive and preventive stages of the sentence must be determined openly and fairly by a court which is independent of the executive. The Parole Board, sitting as a Discretionary Lifer Tribunal with a member of the judiciary in the chair exercises this function. Thus, under the terms of the Prisoners and Criminal Proceedings (Scotland) Act 1993, the trial judge must identify, at the time of sentencing, the relevant part to be served before the offender can be considered for release. Once release has been ordered by the Parole Board, the Secretary of State has no power of veto.
The judgements of the Human Rights Court in the cases of Hussain and Singh have led to changes that place the procedures governing the release of offenders who commit murder when under the age of 18 on the same footing as the procedures governing the release of discretionary life sentence prisoners [ If such offenders are still under the age of 18 at the time of conviction they will be sentenced, in Scotland, to detention without limit of time or, in England and Wales, to detention during Her Majesty's Pleasure.] . Under the terms of the Crime and Punishment (Scotland) Act 1997 the judge must identify the 'designated part' of the sentence to be served in the interests of punishment and deterrence at the time of sentencing and decisions on release are taken by the Parole Board, again with the Secretary of State having no right of veto. The legislation in Scotland differs from that in England and Wales where, under the terms of the Crime Sentences Act 1997, the Home Secretary has retained responsibility for setting the tariff.
In the case of mandatory life sentence prisoners the Secretary of State retains responsibility for determining the length of the minimum period to be served and for determining the point of release. Each case is reviewed by a non-statutory body, the Preliminary Review Committee (PRC), four years into sentence and the PRC advises the Secretary of State for Scotland on when the case should be referred to the Parole Board for consideration. In cases where the trial judge has made a minimum recommendation the PRC will take this into consideration in making its recommendation. (This system differs from the system in place in England and Wales where a tariff is set three or four years into sentence by the Home Secretary in consultation with the Lord Chief Justice and the trial judge.) The Secretary of State cannot release a mandatory life sentence prisoner unless a positive recommendation has been made by the Parole Board and the judiciary have been consulted. When a positive recommendation has been made, however, the Secretary of State is not obliged to accept it. Thus, since 1993 the procedures governing the release of adult mandatory life sentence prisoners have been very different to those governing the release of discretionary lifers and, since 1997, from those governing the release of offenders sentenced for a murder committed while under the age of 18.
There are currently three different types of life sentence available for use by the courts in Scotland. The discretionary life sentence is the maximum penalty available upon conviction of any common law and certain statutory offences tried in the High Court. In practice, however, it is used very sparingly. The procedures which determine the length of time that discretionary life sentence prisoners serve have developed in response to a number of legal challenges and the Secretary of State has no role in the decision making process.
Young people who are convicted of having murdered while under the age of 18 are sentenced to detention without limit of time and the same procedures governing release apply to them.
A life sentence is mandatory in the case of anyone over the age of 18 who is convicted of murder and the trial judge has no discretion to vary the sentence according to the individual circumstances of the case. Decisions governing the length of time to be served, although becoming increasingly transparent, remain the responsibility of the Secretary of State who is able to take into consideration a number of factors, including punishment, deterrence and risk, in determining release.