Report on Mandatory Sentences - Law Reform Commission

five years. This was made permanent by a resolution of the UK Parliament on 31 December 1969.
Section 205 of the Criminal Procedure (Scotland) Act 1995 provides that a person convicted of murder
must be sentenced to life imprisonment.
2.55 As in England and Wales, the sentencing court must specify a minimum term to be served by the
offender before he or she may be considered for release. Section 3 of the Prisoners and Criminal
Proceedings (Scotland) Act 1993, as amended, 138 provides that the sentencing court must specify a
“punishment part” to be served by the offender “to satisfy the requirements of retribution and
deterrence”. 139 Once this punishment part has been served, the offender may be considered for release
by the Parole Board. The Parole Board may only direct the release of the prisoner if the prisoner’s case
has been referred to it by the Secretary of State and if it is satisfied that the prisoner’s continued detention
is not necessary for the protection of the public. 140 If the Parole Board considers this to be the case, the
Secretary of State must release the prisoner on licence. 141
2.56 It is interesting to note that the earliest precursor to section 3 of the 1993 Act was also section
1(2) of the Murder (Abolition of the Death Penalty) Act 1965. In 1972, prior to the publication of the report
of the Criminal Law Revision Committee in England and Wales, the Lord Emslie Committee published a
report in which it reviewed section 1(2) and made a number of recommendations. 142 It concluded that the
courts should be required, save in exceptional circumstances, to declare a minimum term; 143 that any
recommendation should be appealable; 144 and that the courts should be required to provide reasons for a
particular recommendation or for refraining from making a recommendation. 145
2.57 The superior courts in Scotland have provided guidance regarding the calculation of the
punishment part of a life sentence. 146 In HM Advocate v Boyle and Others, 147 for instance, the High Court
rejected the suggestion made by earlier case law that the “virtual maximum” duration of the punishment
part was 30 years. 148 It noted that some cases, for example “mass murders by terrorist action,” might
warrant a punishment part of more than 30 years. 149 The High Court agreed with earlier case law,
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Criminal Justice (Scotland) Act 2003 and Convention Rights (Compliance) Scotland Act 2001, as amended by
section 16(1), section 16(2), paragraph 14 of Schedule 1 and Schedule 3 to the Crime and Punishment
(Scotland) Act 1997 and the Convention Rights (Compliance) Scotland Act 2001.
Section 2(2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by section 16(1),
section 16(2), paragraph 14 of Schedule 1, and Schedule 3 to the Crime and Punishment (Scotland) Act 1997
and the Convention Rights (Compliance) Scotland Act 2001. See: Slapper and Kelly The English Legal
System: 2009-2010 (Taylor and Francis, 2009) at 513.
Section 2(5) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by section 16(1),
section 16(2), paragraph 14 of Schedule 1, and Schedule 3 to the Crime and Punishment (Scotland) Act 1997
and the Convention Rights (Compliance) Scotland Act 2001.
Section 2(4) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by section 16(1),
section 16(2), paragraph 14 of Schedule 1, and Schedule 3 to the Crime and Punishment (Scotland) Act 1997
and the Convention Rights (Compliance) Scotland Act 2001.
The Penalties for Murder (Lord Emslie Committee, 1972).
Ibid at paragraph 92.
Ibid at paragraph 98.
Ibid at paragraph 102.
Walker v HM Advocate 2003 SLT 130; HM Advocate v Al Megrahi High Court of Justiciary 24 November 2003;
and Locke v HM Advocate 2008 SLT 159.
HM Advocate v Boyle and Others [2009] HCJAC 89; see also: McDiarmid “Sentencing Murder: Boyle v HM
Advocate” (2010) 14 Edin LR 473.
HM Advocate v Boyle and Others [2009] HCJAC 89 at paragraph 13. See also: 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.
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