KILLERS could have to spend the rest of their lives behind bars after a landmark ruling by appeal court judges that increased prison terms for murder in Scotland.
• Robert Kelly
Five judges ruled the current 12- year minimum sentence often imposed in murder cases was generally too lenient, while the top level of 30 years was too low.
The decision effectively paves the way for "life to mean life" in the worst murder cases.
Knife crime was specifically highlighted by the Court of Criminal Appeal in Edinburgh, headed by the Lord Justice-General Lord Hamilton, the country's senior judge.
Describing it as "a scourge in the Scottish community", he said a minimum of 16 years should generally be imposed for murders involving sharp weapons.
"Sentences which may cause individuals to think more carefully before arming themselves and which reflect public concern at such killings are appropriate," he said.
Child murderers, police killers and people convicted of firearms murders should not be freed for at least 20 years, an endorsement of an earlier view.
The new measures were greeted with applause from the families of victims in two murder cases
Lord Advocate Elish Angiolini was the architect of the changes. As head of the prosecution service in Scotland, she had taken two cases to the appeal court – the murders of Agnes Mechan and Brian Bowie – to argue the original sentences had been unduly lenient.
She also asked the court to issue fresh, general guidelines to sentencing judges, and for a lower rate of discount in murder cases where an accused pleads guilty.
While the Scottish Parliament could have been asked to pass new laws on the sentencing of murderers, it would probably have taken much longer than the process has taken through the courts.
Lord Hamilton, sitting with Lords Reed, Clarke and Mackay and Lady Dorrian, agreed to all the Lord Advocate's requests.
Anyone convicted of murder receives a mandatory life sentence. Judges also have to impose a "punishment part" of the sentence – the period that must be served before an application for parole can be made.
In a 2002 judgment, the appeal court, then headed by Lord Cullen, reduced from 30 to 27 years the punishment part imposed on former Royal Scots corporal Andrew Walker, who shot dead three people in an army payroll robbery.
Following that ruling, judges began to apply a 30-year ceiling and used 12 years as the "norm" in murder cases, going up or down depending on the aggravating or mitigating features of an individual case.
It had been expected that 30 years would be reserved for Abdelbaset Ali Mohmed al-Megrahi, the Lockerbie bomber, but he was given 27 years. The judges in his case used 30 years as a maximum but reduced it because of Megrahi's age, then 51, and because he would, as they understood it, be serving his sentence in a foreign country in solitary confinement. In yesterday's judgment, Lord Hamilton said the Prisoners and Criminal Proceedings (Scotland) Act prescribed no minimum or maximum punishment part, merely that it be a specified period, and it could be a period that exceeded the prisoner's likely lifespan.
He said the Walker judgment had not stated in terms that 30 years would be the maximum, but had been interpreted as such.
"In our view, there may well be cases, for example mass murders by terrorist action, for which a punishment part of more than 30 years may, subject to any mitigatory considerations, be appropriate. In so far as Walker and al-Megrahi may suggest that 30 years is a virtual maximum punishment part, that suggestion is disapproved," Lord Hamilton said.
The court endorsed earlier rulings that the murder of a child or a police officer, or one involving a firearm, would attract a punishment part "in the region of 20 years".
Lord Hamilton said the Walker judgment could be read as implying that 12 years was the norm or starting point in most cases of murder. "We doubt whether it was the court's intention to set any such norm," he said.
"In any event, we would not regard 12 years as an appropriate 'starting point' for 'most cases of murder'. A substantial number of murders would justify a starting point of a significantly longer period of years. A punishment part as low as 12 years would not be appropriate unless there were strong mitigatory circumstances, and a punishment part of less than 12 years should not be set in the absence of exceptional circumstances – for example, where the offender is a child."
The judge said the Lord Advocate had emphasised that murders committed with knives, swords and similar weapons were a matter of grave concern. The homicide rate in Scotland was 22 per million, as against 14.6 in England and Wales, and 14 in Northern Ireland. Just under half of the Scottish figure were deaths caused by a pointed weapon.
"We agree that, at the present time, knife crime is a scourge in the Scottish community and that the court should be acting, and be seen to be acting, in a way which discourages the carrying of sharp weapons, the use of which may lead to needless deaths," Lord Hamilton said. "Other than in exceptional circumstances, we would expect punishment parts in cases of that kind to be at least 16 years, and they might be significantly longer depending on the circumstances."
At the moment, a sentencing discount of up to one-third for pleading guilty, depending on the circumstances and how early the plea is made, is offered in all cases in Scotland, but it has been widely seen as too generous for murderers. If someone received 12 years for robbery and had a third taken off for pleading guilty, the eight years would be subject to early-release provisions, meaning the prisoner could be freed at four years. At 12 years, release could have been after six years, so the discount would mean the person had served two years less in jail.
Punishment parts for murder do not carry remission. However, a 12-year punishment part could be reduced by a third if an accused pleads guilty..
Lord Hamilton said that of all the crimes in Scotland, murder was the most heinous and "a special case". He added: "We are not persuaded that the same discount should be allowed from a punishment part as from a determinate sentence of the same length.
"We agree that in murder cases, the maximum discount should be about one-sixth, reducing in some cases to nil. We also see force in there being a limit on the total number of years which can be discounted from a punishment part …this should be set at five years, which, of course, could only be reached in very serious cases."
AT A GLANCE
• The minimum term that murderers should spend in jail will now be 12 years, save for exceptional cases, eg where the offender is a child.
• Terms of more than 30 years can now be handed out, eg for mass murder by terrorists.
• A minimum sentence of at least 16 years should be set for knife murders, in order to tackle the "scourge" of knife crime.
• Child murderers, police killers and people convicted of firearms murders should not be freed for at least 20 years.
&149 The discount for a guilty plea in a murder case is to be reduced from one-third to one-sixth of the sentence.
Case Study: Guilty plea, but 15 years too lenient for 'cold-blooded crime'
AGNES "Nessa" Mechan, a 64-year-old grandmother, 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 £200 in cash.
He dumped her body under the floorboards of his flat and covered it with soil.
A police search for Mechan at the time of her disappearance found no trace of her.
Her story came into the spotlight again on the BBC2 show Tales From the Edge, which was broadcast in December 2006.
In it, her grandson Daniel, 11, and niece Lesley Anne, 18, appeared in video diaries about their family's search.
After more than four years of "unimaginable anguish and suffering" for Mrs Mechan's family, her body was finally found in January 2007 when Kelly's former partner told a friend what had happened, and the friend contacted the police.
Kelly admitted murdering Mrs Mechan and the sentencing judge, Lord Brailsford, said it a was cold-blooded crime for which he would have imposed a minimum of 20 years but would discount it to 15 years because of the plea of guilty.
The appeal judges ruled that 15 years was unduly lenient. Lord Hamilton said: "We consider an appropriate initial figure for the punishment part would have been 22 years, with a discount of three years for the early plea."
Case Study: Five extra years for horrific 'medieval execution by burning'
BRIAN Bowie, 35, a father of two from Dunfermline, Fife, had been drinking with Bryan Boyle, 20, in the youth's flat, but they argued and Boyle struck him on the head with a bottle then kicked and stamped on his head. He also stabbed him on 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 and 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.
The appeal court said the burns were the likely major cause of death; the verdicts implied that each accused had known Mr Bowie was alive when they set fire to him. "The circumstances are redolent of the medieval horrors of execution by burning," said Lord Hamilton.
Neither accused had shown any remorse, he added, and the court considered that the sentencing judge, Roger Craik, QC, had failed to give proper weight to the manner of the killing. Periods of 20 years for Boyle and 18 years for Maddock would be substituted.
LIFE SENTENCES ROUND THE WORLD
Indefinite: Argentina, Australia, Austria
100 years: India (maximum)
60 years: Mexico (maximum)
40 years: Philippines (maximum)
25 years : Those convicted of war crimes, crimes against humanity and genocide at the International Criminal Court (minimum)
21 years: Norway (maximum)
10 years: South Korea (minimum)
None: Holland has no maximum length of sentence, but prisoners can be pardoned by the Monarch.
2,484: Youth offenders serving life without parole in the United States – the only country in the world to hand out indefinite life sentences to minors.
