Sentencing in murder cases

We earlier noted the appeal by the Lord Advocate relating to the punishment tariff in murder cases. Judgment in the 5 judge decision was issued in late November 2009 in HMA v Boyle, Maddock, and Kelly [2009] HCJAC 89.

In the opinion of the court issued by the Lord Justice General new guidelines were issued. The key parts of the judgment are in paras [12] onwards

"[12] The Scottish legislation requires the sentencer to specify a punishment part in years and months – though, as we have said, it would be open to him or her to specify a period which was in excess, even well in excess, of the offender's anticipated lifespan. Although in one sense there is an equivalence between a punishment part and a determinate sentence of twice its length – the point of time at which the offender first qualifies for consideration for release on parole is the same – there is a measure of unreality about speaking of a determinate sentence of sixty years. It is difficult to envisage such a sentence being passed in Scotland; almost certainly in such cases a discretionary life sentence or an order for life long restriction would be passed. Moreover, murder is so special a crime that comparison with crimes for which there is no mandatory sentence of life imprisonment is of limited value.

"[13] In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than thirty years may, subject to any mitigatory considerations, be appropriate. In so far as Walker and Al Megrahi may suggest that thirty years is a virtual maximum punishment part, that suggestion is disapproved. On the other hand we endorse the exemplification given in the penultimate sentence of paragraph [8] of Walker of the types of murder which might attract a punishment part in the region of 20 years. [for this passage see our earlier post]

"[14] The first sentence of paragraph [8] of Walker may carry the implication that a punishment part of twelve years is the norm or starting point for determining the punishment part in most cases of murder: the reference to "12 years or more, depending on the presence of one or more aggravating features" might be read as suggesting that "in most cases" the period would be longer than twelve years only if there was one or more aggravating features. We doubt whether it was the court's intention to set any such norm. In any event we would not regard twelve years as an appropriate "starting point" for "most cases of murder". A substantial number of murders – we have in mind in particular those arising from the use by the offender of a knife or other sharp instrument with which the offender has deliberately armed himself (discussed below) – would justify a starting point of a significantly longer period of years. A punishment part as low as twelve years would not be appropriate unless there were strong mitigatory circumstances, and a punishment part of less than twelve years should not be set in the absence of exceptional circumstances – for example, where the offender is a child.

"[16] We agree that at the present time knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths. Sentences which may cause individuals to think more carefully before arming themselves and which reflect public concern at such killings are appropriate. Other than in exceptional circumstances we would expect punishment parts in cases of that kind to be at least sixteen years, and they might be significantly longer depending on the circumstances.

"[17] The foregoing are guidelines and should be treated as such. The circumstances in which murders are committed and the circumstances of offenders vary substantially. It is important that sentencers should retain sufficient discretion in selecting a punishment part as to allow them to take the particular circumstances appropriately into account."

The Lord Justice General goes on to note that a guilty plea in a murder case may see a discount in the sentencing. At paragraph [21] he proposes:

"We agree that in murder cases the maximum discount should be about one-sixth, reducing in some cases to nil. We also see force in there being a limit on the total number of years which can be discounted from a punishment part in a murder case. We agree that this should be set at five years – which, of course, could only be reached in very serious cases. "