Due to changes made to the official Scottish Parliament website at the start of 2011, our parser that used to fetch their web pages and convert them into more structured information has stopped working. We’re afraid we cannot give a timescale as to when we will be able to cover the Scottish Parliament again. Sorry for any inconvenience caused.
Richard Baker (Labour) | Question S3W-40245
Kenny MacAskill (Scottish National Party)
The judgment of an Appeal Court comprising a bench of 7 Judges was issued on Tuesday 1 March 2011 in the cases of Foye and Petch appealing against the "punishment part" of their discretionary life sentences. The punishment part of a sentence is the part that a prisoner must serve before they first become eligible to apply for parole.
The judgement concerned the correct interpretation of section 2(2)(aa) of the Prisoners and Criminal Proceedings (Scotland) Act 1993. This provision was introduced into the 1993 Act by section 1 of the Convention Rights (Compliance) (Scotland) Act 2001. Section 2(2) (aa) governs how judges should set the punishment part of a discretionary life sentence and Orders for Lifelong Restriction.
The effect of the judgement is that section 2(2)(aa) has been interpreted as operating in a way that will mean that a discretionary life prisoner and Order for Lifelong Restriction prisoner may receive a punishment part of their sentence below the level that they would receive if they had received a fixed length sentence for the same offence. In his opinion within the Appeal Court judgement, Lord Justice General states that:
"… I have… come, with regret, to the view that, however unsatisfactory it may appear as a matter of comparative justice, Parliament has given statutory effect to an arrangement under which an indeterminate prisoner will, or at least may, become first eligible for consideration for parole at an earlier stage in his sentence than an equivalent determinate prisoner".
The judgement applies only in cases where prisoners have received a discretionary life sentence or have been made subject to an Order for Lifelong Restriction. The judgement does not affect any convicted murderers as they receive a mandatory life sentence.
As a result of the judgement, some prisoners may be able to apply for parole earlier than had previously been the case, but the parole board will still be required to consider whether the public needs to be protected from the prisoner. If the parole board considers that the public should be protected, the prisoner will remain in prison.
With the detail of the judgement now available, we are considering what primary legislative change may be needed to address the issues raised by the judgement. Such legislative change would be for the administration in place after the May elections to decide upon.