Report on Mandatory Sentences - Law Reform Commission

then adjusted to reflect the aggravating and mitigating factors of the case. 55
indicated that:
In this regard, Treacy J
“The gravity of this case is... of a different order from, for example, a murder committed by one
individual upon another as a result of some sudden quarrel. There was a degree of general
premeditation; it was a racist crime driven by hatred; it involved a gang of like-minded attackers; a
lethal weapon was employed and known in advance to be carried; the victim was completely
blameless and helpless.” 56
3.31 The first defendant was thus ordered to serve a minimum term of 15 years and two months and
the second defendant was ordered to serve a minimum term of 14 years and three months.
(3) Scotland
3.32 As discussed in Chapter 2, section 1(1) of the Murder (Abolition of the Death Penalty) Act 1965
provides for a mandatory life sentence for murder. Section 2 of the Prisoners and Criminal Proceedings
(Scotland) Act 1993, as amended, provides that the sentencing court must specify a “punishment part” to
be served by the offender “to satisfy the requirements of retribution and deterrence”. 57 Section 2 provides
that the punishment part may be any period of years and months even if it is likely that the period will
exceed the remainder of the prisoner’s life. 58
3.33 In HM Advocate v Boyle and Others, 59 the Scottish Court of Appeal rejected the suggestion
made in previous Scottish case law 60 that the “virtual maximum” duration of the punishment part was 30
years. 61 It noted that some cases, for example, “mass murders by terrorist action”, might warrant a
punishment part of more than 30 years. 62 The Court agreed with the previous case law, however, in so
far as it indicated that certain murder cases might be of such gravity that the punishment part should be
approximately 20 years, such as where the victim was a child or a police officer acting in the course of his
or her duty, or where a firearm was used. 63 The Court rejected the suggestion that the starting point for
the punishment part in most murder cases was 12 years. 64 In cases where the offender had armed
himself or herself with a sharp weapon, the Court indicated that, in the absence of exceptional
circumstances, a starting point of 16 years would be more appropriate. 65
(4) Canada
3.34 In Canada, section 235(1) of the Criminal Code provides for a mandatory life sentence for
murder. Section 745 of the Criminal Code sets out, in some detail, the periods that persons sentenced to
life imprisonment must serve before they become eligible for parole. In the case of first degree murder,
55
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58
59
60
61
62
63
64
65
Treacy J stated that had the offence been committed by an adult, he or she would have faced a minimum
term of approximately 18 years.
“Lawrence verdict: ‘Neither of you has shown the slightest regret or remorse’: Judge’s statement” The
Guardian 5 January 2012.
Section 2(1) and 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
Section 2(3A) of the Prisoners and Criminal Proceedings (Scotland) Act 1993.
HM Advocate v Boyle and Others [2009] HCJAC 89. See also: McDiarmid “Sentencing Murder: Boyle v HM
Advocate” (2010) 14 Edin LR 473.
Walker v HM Advocate 2003 SLT 130; and HM Advocate v Al Megrahi High Court of Justiciary 24 November
2003.
HM Advocate v Boyle and Others [2009] HCJAC 89 at paragraph 13. .
Ibid.
Ibid. See also: Walker v HM Advocate 2002 SCCR 1036.
HM Advocate v Boyle and Others [2009] HCJAC 89 at paragraph 14.
Ibid at paragraph 17.
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