Life should mean life?

Photo by Carles Rabada on Unsplash

What does a life sentence for homicide in Scotland actually mean?

Members of the public may scratch their heads when they are reading, viewing or hearing media reports about judges sentencing murderers. Does a 27 year prison sentence represent an adequate punishment in relation to a particularly horrific killing?

I use the figure 27 years quite deliberately because this was the sentence imposed on the murderer, Aaron Campbell, by Lord Matthews at the High Court of Justiciary on 21 March 2019. Campbell was convicted of the abduction and homicide of 6 year old Alesha MacPhail on the Isle of Bute in the summer of 2018.

What perhaps many people fail to realise is that when Lord Matthews imposed the prison sentence on Campbell, for the crime of homicide, this is merely the minimum term which he must serve before he is eligible to apply for parole. It does not mean that Campbell will be released in 27 years. His detention will merely be reviewed. He could be released, but this may well be on licence i.e. subject to very restrictive conditions. Any future Parole Board may well decide that it is not safe or appropriate to release this individual back into society in July 2045- or ever for that matter. The Parole Board May conclude that Campbell can never be rehabilitated.

In a previous post published on 4 March 2019 (Commit the crime, do the time?), I highlighted the fact that judges must work within sentencing guidelines laid down in legislation or developed by the Scottish Sentencing Council. Lord Matthews is a very experienced and senior member of the High Court of Justiciary and would have been well aware of these factors when sentencing Campbell.

A link to a BBC article about the sentencing of Aaron Campbell and footage of Lord Matthews’ sentencing statement can be found below:

Alesha MacPhail murder: Life sentence for Aaron Campbell after he admits guilt

Aaron Campbell was told that he would have to serve at least 27 years before he could apply for parole.

Lord Matthews’ sentencing statement can also be read on the website of the Judiciary of Scotland:

http://www.scotland-judiciary.org.uk/8/2163/HMA-v-Aaron-Campbell

Copyright Seán J Crossan, 21 March 2019

Vulnerable witnesses

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In March 2017, Lady Dorrian, the Lord Justice Clerk (Scotland’s second most senior judge), introduced a new practice note for trials in the High Court of Justiciary which involved child and vulnerable witnesses. The practice note permitted more evidence to be taken by commission i.e. the witness’ evidence and cross-examination can be taken in advance of the trial. This means that vulnerable witnesses do not need to make a personal court appearance.

A link to the practice note can be found below:

http://www.scotcourts.gov.uk/docs/default-source/rules-and-practice/practice-notes/criminal-courts/criminal-courts—practice-note—number-1-of-2017.pdf?sfvrsn=4

BBC Scotland reported today that Lady Dorrian will head up a review into how trials involving sexual offences are carried out. The review will also involve key organisations such as the Crown Office and Procurator Fiscal Service, Rape Crisis Scotland, Scottish Women’s Aid and Victim Support Scotland.

It is now acknowledged by the Scottish Courts and Tribunals Service that the criminal courts are dealing with an increasing number of sexual offences.

The Scottish Parliament is currently looking at changing the law to allow victims of alleged sexual offences to pre-record their evidence and has introduced the Vulnerable Witnesses (Criminal Evidence)(Scotland) Bill.

The Bill’s broad approach – although welcomed by many MSPs – has been criticised by the Scottish Parliament’s Justice Committee which would like to see Scandinavian practices such as Norway’s Barnahus principle being incorporated.

The Barnahus principle relies heavily on a child victim undergoing one forensic interview in an environment where welfare support is readily accessible. Such an interview should should take place as quickly as possible after the alleged sexual offence has taken place.

Lord Carolway, the Lord Justice General, has publicly stated that victims of sexual offences should not be forced to make court appearances.

Lady Dorrian’s review does, however, acknowledge that any reforms contemplated to criminal procedure must protect the rights of an accused person. Article 6 of the European Convention on Human Rights, of course, guarantees a person’s right to a fair trial.

A link to a press release issued by the Scottish Courts and Tribunals Service in respect of the Dorrian review can be found below:

https://www.scotcourts.gov.uk/about-the-scottish-court-service/scs-news/2019/03/20/improving-the-management-of-sexual-offence-cases

It will be interesting to see what recommendations come out of the Dorrian review.

A link to two articles on the BBC website can be found below:

MSPs back new approach to child victims of crime

Justice committee urges the government to adopt a Scandinavian model to deal young crime victims.

Sexual offence cases review by Scottish courts

The way people are treated by the courts during sexual offence cases is to be looked at.

Copyright Seán J Crossan, 20 March 2019

Commit the crime, do the time?

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Sentencing of individuals who have been found guilty in the Scottish criminal courts is a crucial part of a judge’s role. Parliament (whether at Westminster or Holyrood) will often determine the length of sentences through the medium of legislation. Sentencing may also be influenced by judicial precedent.

A lot of misconceptions exist regarding sentencing by judges e.g. members of the public might believe that an offender found guilty of culpable homicide (murder) will serve 17 years only. This is a failure to appreciate that the offender in question must serve a minimum term of 17 years before they can apply for parole. The Parole Board may well refuse to release the offender. The main function of the Scottish Sentencing Council is to demystify sentencing decisions and, therefore, educate the public about these matters.

Sentencing is not just about imposing prison terms on the offender. Judges have a variety of options at their disposal:

  1. Admonition
  2. Caution
  3. Community Pay Back Orders
  4. Drug Testing and Treatment Orders
  5. Football Banning Orders
  6. Fines
  7. Reparation
  8. Restriction of Liberty Orders

A particularly useful resource for students and practitioners of Scottish criminal law is the website of the Scottish Sentencing Council:

https://www.scottishsentencingcouncil.org.uk/

This body was established by the Scottish Parliament in October 2015 as a result of provisions contained in the Criminal Justice and Licensing (Scotland) Act 2010. It consists of 12 members – a mixture of judicial, legal and lay individuals.

A list of the current membership can be viewed by accessing the link below:

https://www.scottishsentencingcouncil.org.uk/about-us/membership-and-recruitment/

According to the Council, its primary duties are as follows:

  1. the preparation of sentencing guidelines to be used by the courts
  2. the publication of guideline judgements which the courts have issued
  3. the distribution of information to the public and practitioners concerning sentences issued by the courts

The Council also carries out research into sentencing.

It is important to note, however, that its remit does not extend to involvement in individual sentencing matters. Crucially, this is a matter for Scottish criminal judges.

The first sentencing guidelines were approved by the High Court of Justiciary on 30 October 2018 and became operational on 26 November 2018.

The link to the principles governing sentencing can be found below:

https://www.scottishsentencingcouncil.org.uk/media/1927/guideline-principles-and-purposes-of-sentencing.pdf

Sentencing Video

One of the really interesting resources on the Council’s website is a video (using a fictional case study) which demonstrates how judges arrive at verdicts in criminal cases. The link to this resource can be found below:

https://www.scottishsentencingcouncil.org.uk/about-sentencing/sentencing-video/

Additional resources on sentencing

The website of the Judicary of Scotland also provides some very useful resources i.e. sentencing statements by judges which set out the rationale for the punishment(s) imposed on the offender by the criminal courts.

A link to a recent sentencing statement by a Lord Commissioner of Justiciary in the High Court at Edinburgh can be found below:

http://www.scotland-judiciary.org.uk/8/2146/HMA-v-Gavin-Scouler

Conclusion

The aim of the sentencing guidelines is to ensure that judges in the criminal courts are making decisions in a transparent and coherent way which the public can understand. Judges can and do come in for a lot of criticism when it comes to sentencing decisions. Often the public does not understand what lies behind these decisions and, frequently, certain sections of the media are not exactly helpful in this regard.

It should be appreciated that the hands of judges are tied by legislation and judicial precedent which govern sentencing.

The area of criminal law regulating the possession, supply and production of illegal drugs (whether Class A, B, C or temporary Class drugs) is a great example of the boundaries in which judges have to operate when imposing sentences for these types of offences. Although criminal justice is a devolved area, the laws governing illegal use of drugs are UK wide.

A link to the possible sentencing limits for drugs offences can be found below:

https://www.gov.uk/penalties-drug-possession-dealing

It is important to note that that the guidelines do not mean that sentences in similar types of cases will be exactly the same. Judges will take into account different factors when imposing sentences e.g. relevant previous criminal convictions, victim (impact) statements and whether the individual co-operated with the court by pleading guilty at an early stage of the proceedings.

Postscript

In May 2019, six men (involved in a Glasgow gangland feud) were jailed for a collective total of 104 years by Lord Mulholland at the High Court of Justiciary.

A link to an article on the BBC website containing the background to this story and a video of Lord Mulholland passing sentence can be found below:

Six jailed over Glasgow ‘war zone’ gang feud

Police said it was a miracle no-one died in the attacks, which took place in and around Glasgow.

Copyright – Seán J Crossan, 4 March and 10 June 2019