Lord Advocate: 'Life should mean life'

In a controversial intervention, the Lord Advocate, Elish Angiolini, QC, told the Court of Criminal Appeal yesterday that she believed the current options available to the judiciary were inadequate to deal with the most serious murder cases. And she called for a further review of sentencing in murder cases, as she argued that two killers had been treated too leniently.

At present, judges use a range of between 12 and 30 years when fixing the minimum period to be served under a life sentence.

But for the most serious cases, the Crown now believes the 30-year limit to be inadequate and has called for it to be abolished.

In these instances, murderers should be locked up for a whole life term, the Crown argues. Mrs Angiolini said: "The range of sentences considered to be appropriate should be uplifted and raised beyond the perceived 30-year maximum … it would be competent to consider a whole life order as a maximum sentence in highly exceptional cases."

That raises the possibility of judges considering minimum tariffs of 35 or even 40 years.

Mrs Angiolini told the court the time was right for fresh guidelines, without setting rigid tariffs to limit a judge's discretion in sentencing in the particular circumstances of a case.

Last night, her statement was broadly welcomed by MSPs, who said there was "common sense" to the submission.

However, the proposals were criticised by Donald Findlay, QC, a leading defence lawyer, who accused the Lord Advocate of political interference in the sentencing process.

She responded by describing his suggestion as "outrageous".

Mrs Angiolini – who was speaking on the day when Kenny MacAskill, the justice secretary, unveiled reforms aimed at cutting both reoffending and the number of short prison sentences – also asked the court to reduce the current one-third discount offered to an accused for pleading guilty to murder, so sparing the family of the victim the trauma of a trial.

This cut was too large and a one-sixth reduction would be more appropriate, she argued.

Anyone convicted of murder in Scotland currently receives a mandatory life sentence. Since the adoption of the European Convention on Human Rights, a murderer is now also told the "punishment part" of the sentence – that is the number of years that must be served before any application can be made for release on licence.

Only the life term is set by statute, and judges are free to decide the appropriate punishment part in each case.

The Lord Advocate used two cases in the appeal court to make her pitch for new general guidelines on the sentencing of murderers. She contended that unduly lenient sentences had been given to Robert Kelly, 33, who was jailed for at least 15 years for strangling a grandmother and hiding her body under floorboards, and to Bryan Boyle, 20, and Greig Maddock, 22, who received minimum terms of 15 and 12 years for the murder of a man who was set on fire.

Mr Findlay said that historically, the Crown had played a very limited role in sentencing.

"What the Crown is seeking to do here is introduce a political element that this court should not be prepared to allow," he said. "There is a fundamental, constitutional issue … the Crown is trying to move away from the approach that the trial judge is to be trusted with these matters. I would argue that this is political interference.

"I take no issue with the right of this court to lay down guidelines for trial judges, but for the Crown to enter into this … is a major retrograde step."

Mrs Angiolini replied: "I am concerned about the somewhat cavalier way that remark was made. I take exception to it. I think it is outrageous to suggest that the Lord Advocate, as head of the prosecution service, would attempt to influence this court in any political fashion."

Last night, Ian Simpson, QC, a former sheriff and temporary judge, described the sentencing process as "a quagmire" and "bonkers".

He said: "Sentencing is for the court to decide, but the Crown does have a role to play as well. I do not have a problem with the Lord Advocate making submissions to the appeal court. What I do have a problem with is ministers trying to tell judges and sheriffs what they should do – which I would describe as a developing trend."

Concerns have previously been expressed about the length of sentences given to Scotland's most serious criminals.

Colin Boyd, a former lord advocate, launched an attempt to lengthen the prison sentence of the Lockerbie bomber, who was given a minimum of 27 years for murdering 270 people.

Others have warned that murderers are frequently treated too leniently. To avoid snarling up the court system with lengthy and expensive murder trials, killers are being given the opportunity to plead guilty to the lesser charge of culpable homicide. Critics argue that murderers are being released after serving much shorter sentences than their crimes deserve.

Richard Baker, Labour's justice spokesman, said: "On the surface there appears to be common sense in the proposals – many people feel that in serious cases life should mean life."

But Robert Brown, the Liberal Democrats' justice spokesman, said: "

(The Lord Advocate] has the right to appeal against sentences and clearly this already acts as a public safeguard. These arrangements have worked quite well for quite a long time and I think the case needs to be made for changing them."

A Scottish Government spokeswoman said: "The Lord Advocate has long-standing powers to appeal against undue leniency in sentencing. This would include whether she considers the discount to be too high."

Yesterday's appeal case was continued until the new year.

ANALYSIS

AS THE government's chief legal adviser, Elish Angiolini's intervention on a matter such as sentencing will always attract controversy.

The Lord Advocate is appointed by the First Minister. Her independence from the body politic is enshrined in the 1998 Scotland Act, yet Mrs Angiolini used to sit in on Cabinet meetings of the Scottish Executive after Jack McConnell named her as Lord Advocate in 2006.

However, Alex Salmond banned this practice after re-appointing her last year.

The fact that she, as head of the prosecution system, called for a sentencing review on the same day as Kenny MacAskill, that SNP justice secretary, announced new plans to manage offenders, raises questions over the division between law and politics.

The savage killers Crown claims will get out too early

APPEAL 1

BRIAN Bowie, 35, a father of two from Dunfermline, had been drinking with Bryan Boyle, 20, in a flat, but they argued and Boyle attacked him, striking him on the head with a bottle and kicking and stamping on his head as he lay defenceless on the floor.

He also stabbed him in the leg.

The unconscious Mr Bowie was dragged outside, and Boyle's friend, Greig Maddock, 22, arrived on the scene. Paper was stuffed into Mr Bowie's pockets and he was doused with lighter fuel. He was placed on a pyre of pornographic magazines and set alight.

The two men fled and Mr Bowie's moaning attracted passing youngsters, who raised the alarm.

He died five days later in hospital.

He had suffered a fractured skull, but he died from full thickness burns to 32 per cent of his body.

Boyle and Maddock were both convicted of murder. Boyle was ordered to serve at least 15 years and Maddock 12 years under life sentences.

APPEAL 2

AGNES "Nessa" Mechan, 64, disappeared in 2002.

She had worked as a collector for a loans company in Glasgow, and Robert Kelly, 33, was a customer.

She called at his home in Govanhill and he strangled her with cord and robbed her of a handbag and a total of 340 in cash.

Kelly then dumped Ms Mechan's body under the floorboards of his flat and covered it with soil.

After more than four years of "unimaginable anguish and suffering" for Mrs Mechan's family, her body was finally found in January last year when Kelly's former partner told a friend what had happened, and the friend then contacted the police.

Kelly admitted murdering Mrs Mechan.

The sentencing judge, Lord Brailsford, described it as a cold-blooded and premeditated crime for which he would have imposed a minimum of 20 years, but would discount it to 15 years because of Kelly's plea of guilty.