Scottish Government
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Legal loophole closed
A legal loophole whereby life prisoners could become eligible for parole earlier than those serving sentences of a fixed length has been closed after a new Act designed to improve the justice system comes into force yesterday.
The Criminal Cases (Punishment and Review) (Scotland) Act resolves a technical anomaly which arose following the Appeal Court's judgement in the case of Petch and Foye v. HMA, which meant that prisoners given a discretionary life sentence or Order for Lifelong Restriction (OLR) could apply to become eligible for parole earlier than those serving sentences of a fixed length.
Yesterday the courts have regained the discretion to set a 'punishment part' of non-mandatory life sentences that it considers appropriate in all the circumstances of a particular case to ensure appropriate punishment of the offender.
Justice Secretary Kenny MacAskill said:
"I’m pleased that this Act has now come into force as it closes a legal loophole caused by a recent judgement which created the absurd situation of prisoners serving life sentences being able to qualify for parole earlier than those not serving life.
“It is very important to ensure that the courts have compete confidence that when they impose a discretionary life sentence or an OLR, they can impose an appropriate period of punishment as part of the overall sentence. These types of sentence are an important way of ensuring serious offenders are effectively punished and the public are protected.
"Protecting the public and punishing serious offenders is the priority and this Act will now ensure our courts have the sentencing powers they need to make sure punishment is always appropriate to the crime.
"It is important to note that no prisoner has been released from prison directly as a result of the Petch and Foye judgement as the Parole Board plays an important role in assessing the risk individual offenders pose - if there is any question of them being a danger to the public they will remain behind bars.
"However, it can be deeply traumatic for victims and their families when they hear courts are not able to punish serious offenders appropriately and I hope this legislation will bring reassurance that public safety is the priority.”
The effect of the Petch and Foye judgement has been that some offenders who had received an OLR or discretionary life sentence have been able to successfully appeal against, and in some cases shorten, the length of the punishment part of their sentences.
The 'punishment part' of a sentence is the minimum period of time which an offender must serve in prison before they become eligible to apply to the Parole Board for consideration of being released on parole.
The role of the Parole Board is to consider whether prisoners continue to present a risk to public safety. If the Parole Board considers an offender does continue to present a risk to public safety, the Parole Board will not authorise the release of that offender on parole.
Our changes to the law will not be retrospective and therefore will not impact on cases and appeals currently being heard.
The Act also puts in place a framework that will enable, as far as possible within devolved competence, the disclosure of information by the SCCRC in cases where an appeal has been abandoned or has fallen.
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