The Meaning of Life

Never read the comments. Specifically, never read the comments on news articles relating to your chosen profession / area of interest.

Because I am both an idiot and a masochist, I occasionally read the comments on news reports of criminal cases. For example, take today’s news report of the sentencing of Nico Allan for the murder of Mark Squires in Edinburgh in October 2017.

Here is a sample of the comments, which I would say is representative of the comments you tend to get on reports like these.

Murder is obviously an awful crime, and people are quite right to be upset and angry with the person convicted. I’m not suggesting for a second that people wanting murderers to be locked up forever are being silly. However, I do think that comments like these underline the importance of a dispassionate and evidence-based legal approach to dealing with people convicted of murder.

I thought that a post explaining the concept of “life imprisonment” might be useful for those who aren’t familiar with how it works in practice. It might persuade someone that life imprisonment is something that should be taken seriously – who knows?

A Modest History of Life and Death in Scotland

As you probably know, capital punishment was A Thing in Scotland until the mid 20th Century. To illustrate this, have a look at this Herald article on hangings in Glasgow, which includes an objectively excellent picture of an old boy pointing at a trapdoor in Duke Street “Pirson”.

It’s also worth having a quick read of the Hauf-Hangit Maggie story, which has to be one of the finest examples of the legal technicality in history.

Eventually, the Murder (Abolition of Death Penalty) Act 1965 came along and did what it said on the tin:

So, when somebody is convicted of murder, the court has to impose a sentence of life imprisonment. “Discretionary” life sentences are also available for other offences (e.g. rape).

Over the years, the law in Scotland (as well as in England & Wales) has evolved to the point at which it is accepted that those sentenced to life imprisonment have the right to have their continued imprisonment reviewed after a certain point. The basis for this comes from the following 1990 case:

Thynne, Wilson and Gunnell v UK (1990 ECHR 29)

• Article 5(4) of the European Convention on Human Rights states: “Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
• Thynne, Wilson and Gunnell had each been given discretionary life sentences in England for violent sexual offences.
• They argued that the concept of life imprisonment without possibility of review breached their rights under Article 5(4).
• The court in Strasbourg decided, by 18 votes to 1, that their rights were indeed being breached by not allowing possibility of review. Life sentences should be regarded as having two parts – a “punishment” part (aimed at the offender) and a “security” part (aimed at protecting the public).
• The prisoner should be allowed to apply to have their continued imprisonment reviewed once they had served the punishment part of their sentence.

If you think that this is outrageous / another example of Human Rights Gone Mad / Brexit Means Brexit etc, take some comfort in the knowledge that, if human rights can apply to Bad People, that means that they definitely also apply to you, a Good Person! Terrific!

The Law on Life

The Prisoners and Criminal Proceedings (Scotland) Act 1993 was enacted as a reaction to the Thynne case, and it’s the relevant piece of legislation when considering the treatment of life prisoners in Scotland today. I’ve tried to highlight the pertinent bits of this word salad for current purposes:

Long story short: when sentencing you for murder, the High Court judge has to impose a sentence of life imprisonment, while simultaneously specifying a period of time as the punishment part of that sentence. In other words, this is the period of time (i.e. many years) that you have to spend behind bars, without any prospect of getting out. No early release, no “time off for good behaviour”, nothing.

At the time of writing, the longest punishment part imposed in Scotland is 37 years for Angus Sinclair, “the World’s End Murderer”.

Only after the punishment part has expired, you can apply to the Parole Board for Scotland (PBS) for release. They have a decent FAQ page on their website here.

The PBS will consider evidence from a variety of sources in order to decide whether the risk you present to the public can be managed or not. I’ve dealt with Parole Dossiers – they tend to run to hundreds and hundreds of pages, so we can assume that there’s little chance of leaving stones unturned.

“The Parole Board must look at wider issues than the offender’s behaviour in custody. The Board has regard to a wide range of information when considering the case from a variety of sources. The prisoner’s criminal record, his/her family background, what counselling/courses he/she has undertaken while in custody in order to address the causes of offending, the response to such counselling and the prisoner’s plans for release are all important.”

(from the Parole Board for Scotland’s FAQ)

If they decide that you are not ready to be released, you will stay in prison. You can only apply to the PBS once every two years.  There is no guarantee that the Parole Board will ever agree to release you. It is quite possible that you will die in prison.

The length of the punishment part of your sentence has nothing to do with your prospects of release by the PBS. In other words, it’s quite possible to envisage a scenario in which an individual is sentenced to life imprisonment for murder, wins an appeal against the length of the punishment part of their sentence (with all of the tabloid outrage that entails), and then ends up dying in prison long after the expiry of the reduced punishment part. It’s like raaaaeeeeaaaain on your wedding day (etc).

Just to hammer home this point again: the punishment part is the minimum period of time that you have to spend in prison. More often than not, you will be in prison significantly longer than that.

Post-Parole

Even if the PBS decides to release you, the sentence of life imprisonment never goes away.

You will be released “on life licence”. This means that you have to obey strict conditions, such as undertaking counselling, reporting to a supervising officer, living in a specific place or reporting any change in your circumstances (e.g. taking up employment). You will be kept on as short a leash as the authorities deem appropriate.

These conditions can change over time, but you will never be entirely free of them. There are serious consequences for breaching them, or for committing another criminal offence (etc). If the PBS recommends it, or the Scottish Ministers think it is “expedient in the public interest”, your licence can be “revoked” at any time, and you’ll be taken back to prison to continue serving your sentence of life imprisonment. This is set out in section 17 of the 1993 Act.

To give you an idea of the sort of mental strain involved with being on licence, I worked as a Legal Adviser in the Justice of the Peace Court for a few months just after qualifying as a solicitor. One day, we had what appeared to be a completely run-of-the-mill speeding case (36mph in a 30mph zone) – 3 penalty points, £100 fine, everybody’s happy (not really, but you know what I mean). Unusually, the accused had turned up. He pled guilty, and immediately burst into tears. I had no idea what was going on, until the accused explained that he was on life licence for murder, and he was terrified that this daft wee speeding conviction could directly lead to him dying in prison. Whatever your views on rehabilitation or sympathy for those convicted of terrible crimes, you have to admit that it’s a hell of a burden to carry around.

That’s a relatively brief guide to how life sentencing works in Scotland. If you’re an advocate for the death penalty (despite the evidence suggesting that it’s immoral, extremely expensive and an ineffective deterrent), or believe that we should be imprisoning more people for longer periods of time in worse conditions (in which case I’d recommend that you have a look at the Howard League’s publications), then you may not have changed your views, which is fine. As long as you know that “life” does actually mean life.