Life is getting longer

If your memory stretches back to the 1980s, you may well remember the controversy surrounding the licensing and subsequent ordination as a Church of Scotland minister of the late James Nelson, convicted in 1969 of the murder of his mother.

Nelson served some nine years before his release on life licence. He later served for many years as minister at Chapelhall and Calderbank. It is a sobering thought to reflect on what might have happened to him were he to be convicted today.

Life sentences prior to 2002

As many practitioners will recall, at the time Nelson was sentenced, and for many years thereafter, the sentencing court did not impose any minimum term to be served in a life sentence. In rare cases the judge might recommend such a minimum term, but this was advisory only.

At the time of Nelson’s release, responsibility lay with the Secretary of State for Scotland, on the advice of the Parole Board for Scotland, to determine if and when the release of any life sentence prisoner on licence should take place. 

Figures published by the Parole Board in its 2017-18 Annual Report, on the release of prisoners serving life sentences, reveal that in 1978, about the time of Nelson’s release, five of those prisoners had served 8-9 years, four prisoners 9-10 years, one 10-11 years, two 11-12 years, and one over 14 years. While it is not possible to be precise, since neither the exact length of each sentence nor the time served by the longest serving prisoner is known, this equates to an average of about 10 years.

Changes in sentencing practice

In 2002 legislative changes came into force in Scotland which were considered necessary to ensure compliance with the European Convention on Human Rights. The sentencing judge would henceforth fix what was termed a “punishment part”, defined as “the part of that period of imprisonment which the court considers would satisfy the requirements of retribution and deterrence (ignoring the period of confinement,
if any, which may be necessary for the protection of the public)”: Convention Rights Compliance (Scotland) Act 2001, s 1. At the conclusion of that period the Parole Board would be responsible for determining whether the prisoner should be released or whether they continued to pose such a risk to society that detention should continue. Similar reforms took place in England & Wales.

Recent trends

Parole Board statistics suggest that the average time served by life sentence prisoners has increased inexorably since the 1970s. Its 2013-14 Annual Report reveals an average for those released in 2013-14 of around 13.8 years (using the same basis for calculation as with the 1978 data), the range being from 7-8 years to over 30. The increase in the average period in custody compared with those released in 1978 is therefore in excess of 35%. 

More recent published data do not provide a breakdown of the length of time spent in custody by those serving 14 or more years, so the same calculation cannot be made for later years. But other data demonstrate further increases. Figures kindly supplied by the Scottish Courts & Tribunals Service for punishment parts imposed in life sentences for murder from 1 January 2010 to March 2018 reveal a range from 8 years 9 months to 37 years, with an average of 16.7 years. And published material from Scottish Government puts the average punishment part imposed in 2018-19 at 18 years, having increased from 14.3 years in 2004: Experimental Statistics on the Length of the Punishment Part of Life Sentences and OLRs.

Those figures of 16.7 years and 18 years represent a further significant increase on the 2013-14 figure of 13.8 years – about 21% and 30% respectively. But of course the latter figure, which is for time actually served, is not directly comparable. The punishment part is the minimum time that will be served. There is no guarantee of release at that stage. When the Parole Board for Scotland considers the release of prisoners reaching the end of the punishment part of their sentence, a significant proportion will be deemed unsuitable for release at that stage, and will be detained for longer on the ground that they still present a risk to the public.

In fact, the great majority of life sentence prisoners will not be granted immediate release at the end of the punishment part. As disclosed in its 2020-21 Annual Report, of the 494 life sentence cases considered by the Parole Board in 2020-21 (all of which must involve prisoners who have reached, or are about to reach, the end of their punishment part), release was directed in just 37 cases: 280 were not recommended for release, 167 were postponed or adjourned, and 10 were withdrawn. Given those statistics, the sentence actually served by most prisoners will be considerably longer than the punishment part. Some are unlikely ever to be released. It is therefore reasonable to assume that the average time spent in custody by those upon whom a punishment part was imposed in 2018-19 (average length 18 years) will exceed 20 years – double the 1978 figure.

Views from the court

What has the Appeal Court said about the length of punishment parts in recent years? In Walker v HM Advocate 2002 SCCR 1036 it was said that “In the absence of significant mitigation most cases of murder would, in our view, attract a punishment part of 12 years or more… However, there are cases – which may be relatively few in number – in which the punishment part would have to be substantially in excess of 20 years.” 

Walker was in addition interpreted as concluding that 30 years was the maximum for a punishment part. In HM Advocate v Al Megrahi (24 November 2003, unreported) the court, having referred to Walker, said: “While it is not said in terms, the implication is that 30 years should be regarded as virtually the maximum that should be imposed as the punishment period.”

In HM Advocate v Boyle 2010 SCCR 103, however, the court gave the following guidance for the fixing of the punishment part on a conviction for murder:

“[13] In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than 30 years may, subject to any mitigatory considerations, be appropriate. In so far as Walker and Al Megrahi may suggest that 30 years is a virtual maximum, that suggestion is disapproved”.

In Smith v HM Advocate 2011 SCCR 134 a punishment part of 35 years, reduced to 32 due to a plea of guilty, was held on appeal to be fully justified, in a case described as “truly exceptional”. Commenting on this in McDonald and Anderson v HM Advocate [2011] HCJAC 71, the court noted that “there has clearly been a tendency for the length of punishment parts in all murder cases to increase with the passage of time…, and more generally we find it hard to imagine a punishment part as high as that in the recent case of Smith being imposed, or being affirmed, even eight to 10 years ago”.

In Wade and Coats v HM Advocate [2014] HCJAC 88, punishment parts of 30 and 33 years were upheld on appeal. And in Sinclair v HM Advocate 2016 SCCR 209 a punishment part of 37 years was upheld, the court observing: “What may be regarded as an appropriate punishment part may vary from era to era.”

Pressure for more severe sentences

Whatever the reasons behind the increasing length of determinate sentences in life sentence cases, there is little doubt that pressure from the media and the public generally for longer sentences in all serious cases has grown. These days almost any high profile case seems to lead to a clamour for an appeal against the sentence as unduly lenient, whether from the media, from victims or from relatives.

Judges do, it must be said, sometimes get it wrong, but in most instances there is no prospect of successfully appealing a sentence, whether as excessive or as unduly lenient. In my capacity as head of the Crown Office Appeals Unit for over six years I reviewed every request by the Crown for consideration of such an appeal. The number with any prospect of success was small, given the range of sentence open to the judge in the exercise of their discretion.

Despite that, it was not uncommon for pressure groups and special interest groups to deluge the Crown with letters urging an appeal. Pressure on the Lord Advocate for an appeal of this sort also frequently came from MSPs representing the victim or his or her family. I can recall numerous examples of MSPs publicly criticising a sentence as “too soft”. I do not at any time recall an MSP ever publicly decrying a sentence as too severe. Is this because they perceive no political advantage to be gained in supporting the rights of convicted prisoners?

Why, then, do we appear to consider as a society that long and longer prison sentences are a solution to crime? The view extends well beyond homicide cases. To exemplify the level of obsession and even vindictiveness that can arise over such matters, in one case some years ago involving animal cruelty the Lord Advocate was deluged with hundreds of letters purporting to support an appeal. On enquiry, the majority were found to be forgeries, part of an orchestrated campaign, and not emanating from the people bearing to have signed them.

The purpose of sentencing

I am not starry eyed about offending or offenders. I spent much of my professional career prosecuting, and I am well aware of the horror of a life taken violently. In the course of many homicide investigations I have attended crime scenes, autopsies, interviewed distressed relatives and witnesses, spent many weeks painstakingly preparing a case for court, and been satisfied to see justice done in the resulting conviction. But I also believe in the possibility of redemption, repentance, forgiveness and rehabilitation.

For a number of years I was a member of a subcommittee forming part of the Church of Scotland’s Safeguarding Service. Drawing on a variety of professional backgrounds, we examined every application for employment or for a voluntary post within the church (including many posts working with those suffering from drug and alcohol abuse) where a check with Disclosure Scotland revealed a previous conviction or some other relevant piece of information. 

Each case was assessed on its merits, and there were times when an applicant was considered unsuitable for appointment because of their criminal record. But one of the most encouraging and inspiring aspects of the work was the frequent example of people with quite appalling records, often linked to substance abuse, where the offender had completely changed their life and after a number of years of recovery wished to assist others with similar problems.

Public attitudes to sentencing

Sadly, such considerations seem far from the minds of most citizens. I am driven to the conclusion that we are simply becoming a more retributive society, and that our criminal justice system is reflecting that. It is not difficult to see whence a significant amount of the pressure in this direction comes: one only has to look at the extraordinary length of custodial sentences often imposed in the United States. Much (although not all) of the pressure for a Crown appeal against the 27-year punishment part imposed on Al Megrahi, the Lockerbie bomber, came from that quarter. So did much of the criticism of the Justice Secretary’s decision, on compassionate grounds, to release the terminally ill Megrahi from custody. But I search in vain for any evidence that Scotland is safer or in any other way a better place because the average time spent in custody by convicted murderers will be double the average period in the 1970s.

That lack of evidence should not be surprising. However the matter may sometimes be portrayed, the length of punishment part of a life sentence has nothing to do with public safety – anything but. First, none of the increase in time spent in custody by life sentence prisoners in Scotland appears to have any basis in research demonstrating that society is safer because of it. And secondly, that is not what the punishment part is for. Bear in mind that the “punishment part” is just that – punishment (and deterrence). It takes no account of risk, which falls entirely within the remit of the Parole Board for Scotland. That body will determine whether, if ever, a life sentence prisoner should be released, but only once the punishment part is served.

Reasons for the increase

Why, then, are judges imposing increasingly lengthy punishment parts? Societal pressure aside, the introduction of the punishment part itself may be a significant factor. Its length will always be the figure that has greatest prominence in media reporting. Is there an element of double counting here? Are judges tending to identify the figure they feel is the appropriate total time that should be served, and selecting that as the punishment part, regardless of the role of the Parole Board?

Whether or not there is such an element of double counting, when one reaches the upper end of the scale the length of the punishment part can be little more than arbitrary. It is simply not possible to look 20 or 30 years into the future and forecast what factors may come into play during that period. Is locking someone up for 30 years without the prospect of earlier release, no matter what evidence of remorse, rehabilitation or other changes might become available during that period, therefore ever justifiable? Nor does the practice take account of changes in the approach to offending, or sentencing, that might take place during that period – and there will inevitably be changes, for better or worse. On the other hand, if any determinate part of a life sentence were to be subject to review, for example after a proportion of it had been served, or a minimum period such as 10 years, the sentencing judge, or another judge, would have the opportunity to consider whether the determinate part remained appropriate.

For some years there has been considerable pressure on courts not to impose short sentences of imprisonment, but to select non-custodial alternatives on the ground that research has demonstrated these to be more effective in preventing reoffending. In the light of that research the Scottish Government introduced a presumption against the imposition of sentences of under three months, subsequently increased to 12 months: Presumption Against Short Periods of Imprisonment (Scotland) Order 2019. It is ironic, therefore, that custodial sentences for the most serious crimes are increasing at such a rate without any evidence of the effectiveness of that policy, and indeed without any apparent consideration of the rationale behind the increase.

I do not regard this perspective on sentencing as based on a particular religious, moral or political position. But more than 25 years in Scotland’s criminal courts taught me that those caught up in the criminal justice system, whatever they have done, are frequently among the most vulnerable in society. Media reporting of court proceedings focuses on the offence, and increasingly on victims, but seldom on the circumstances of the offender, thus presenting a skewed picture to the public. Judges, of course, require to take all such matters into account when determining sentence, but the pressure on them is great. Victims must have a voice, but balance needs to be maintained, and I fear we are losing that balance.

Do we want to follow the transatlantic pattern of absurdly long sentences? Or do we as a society want to hang on to such concepts as rehabilitation and forgiveness?

And finally, what of James Nelson? Would he be released today after serving nine years of a life sentence? And would he, or would Scotland, be any better for more time spent in custody? 

I am grateful to the Scottish Courts & Tribunals Service for providing some of the data upon which this study is based.