Scramble to tighten law as judges halve sentence of infamous rapist

A CHANGE in the law was promised by the Scottish Government last night after a notorious rapist won an appeal and had the minimum period he will spend in jail halved from nine years.

Robert Foye attacked a schoolgirl in Cumbernauld while on the run from an open prison. He had been let out for a day to attend an Alcoholics Anonymous meeting, but failed to return.

A judge decided Foye should be given a life sentence, and ordered he serve at least nine years before being eligible for parole.

Since Foye was sentenced, a judgment by the Court of Criminal Appeal in Edinburgh has rewritten how minimum terms – under an order for lifelong restriction (OLR), known as “punishment parts” – should be calculated. It said it would be up to government to alter the law if it wanted.

The effect of the ruling has been a general reduction in punishment parts, and yesterday Foye, 32, became the latest criminal to benefit. Responding to the decision, justice secretary Kenny MacAskill said: “I intend to bring forward the necessary changes to the law before the end of this year to address the issues raised in the judgment.

“Robert Foye has been convicted of the horrific crime of rape of a 16-year-old girl. I respect the decision of the court – but I am aware many people will be concerned the minimum punishment part in this case has been reduced. It was a truly appalling crime.”

John Lamont MSP, Tory justice spokesman, said: “People will be aghast. Do we really think four and a half years is enough for this heinous act? Even in soft-touch Scotland, the public will be shocked, and rightly so.”

Three appeal judges emphasised that no matter the stipulated minimum term, an offender like Foye might continue to be regarded as a danger to the public and might never be freed.

Since the introduction of OLRs five years ago, the sentence has been applied in about 80 cases and no-one has been released, even those who have completed their punishment part.

In 2007, Foye was serving a nine-and-a-half-year sentence for the attempted murder of a policeman, who he had struck while trying to escape in a stolen car.

He was in Castle Huntly open prison, Tayside, and, in spite of an earlier incident when he absconded on leave, he was allowed out for an AA meeting.

He remained at large for a week, living rough in woods in his home town of Cumbernauld.

The 16-year-old victim, a pupil at a fee-paying school, was seized by Foye in broad daylight and dragged into trees, where he beat and raped her, ignoring her pleas for mercy. The judge, Lady Smith, said it was “an appalling and terrifying” offence and imposed an OLR.

Under an OLR, the person is freed only if a parole board is satisfied it would be safe. The person remains under supervision, subject to recall, for life.

In March, appeals by Foye and child abuser Morris Petch, 54, who also received a life sentence, were used as test cases because of doubt about the way punishment parts were being assessed. It was held the starting point should be the number of years applicable under a determinate sentence, from which the element for protection of the public had to be removed, since this would be covered by the OLR.

Then the remaining years had to be halved, to recognise under a determinate sentence a prisoner would be eligible for parole at the halfway stage.

Under the new formula, Petch had a punishment part of 12 years cut to eight.

In yesterday’s ruling, Lord Osborne, sitting with Lords Woolman and Wheatley, said 15 years would be the starting figure for Foye’s offence, reduced to 12 once the “public protection” element was removed.

The 12 years had to be halved, then a discount made as Foye pled guilty. It could have been up to a third but the judges decided on a quarter, leaving a punishment part of four and a half years.

The period began to run in 2009, after Foye’s previous sentence had expired.