The Scottish Government

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CHAPTER THREE: DISCRETIONARY LIFE SENTENCE PRISONERS

Following commencement of Section 16 of the Crime and Punishment (Scotland) Act 1997, offenders sentenced to life imprisonment at the discretion of the trial judge are known as 'designated life prisoners'. The offenders in this study, however, were sentenced prior to the 1997 Act and were known as discretionary life sentence prisoners. This term is used throughout to refer to those given a life sentence for offences other than murder.

Characteristics of discretionary life sentence prisoners

Although life imprisonment is available at the judge's discretion for all common law and certain statutory offences tried in the High Court it is rarely used. Records retained by Parole and Miscarriages Review Division of The Scottish Office Home Department at the end of December 1996 showed that the Scottish Prison Service had held a total of 41 discretionary life sentence prisoners (39 males and 2 females). Table 3 shows the year in which each of these discretionary lifers received their sentence.

TABLE 3: Year in Which Discretionary Lifers Received Their Life Sentence

In the 22 years from 1963 to 1985 a total of 13 offenders received a discretionary life sentence. In the 11 years from 1986 to 1996, however, the frequency with which discretionary life sentences were imposed increased more than fourfold, resulting in a total of 28 discretionary life sentences over this period. More discretionary life sentences were imposed in 1996 (N=5) than in any other previous year. Indeed, as many were imposed in this single year as were imposed in the 15 years between 1963 and 1978.

TABLE 4: Age of Discretionary Lifers at Time of Conviction

Table 4 shows the age of discretionary life sentence prisoners at the time of conviction. More than three fifths (63%) were aged 30 or over when convicted, a proportion which is in sharp contrast to that of mandatory life sentence prisoners (c.f. pg. 31) of whom only 26% were aged 30 or over at conviction.

Table 5 shows the crimes/offences for which the discretionary life sentence prisoners received their life sentences. The information presented on the nature of the crimes resulting in conviction in some cases does not fully represent the seriousness of the cases. For example, one of those convicted of attempted rape was convicted of multiple charges against 8 different victims for offences carried out over a lengthy period of time; one of those convicted of attempted murder was convicted of multiple charges relating to a series of knife attacks on 6 strangers; and 4 of those convicted of rape had carried out multiple attacks. It should also be remembered that following conviction the offenders' previous convictions will have been made known to the sentencer and in many cases the extent and seriousness of these (c.f. pgs. 23-26) may have contributed to the decision to impose a discretionary life sentence. More than half (62%) of the discretionary lifers had previous convictions for non-sexual crimes of violence, for example, while 51% had previous convictions for crimes of indecency.

TABLE 5: Crimes for Which Discretionary Lifers Received Their Life Sentence

Consideration of release

Prior to 1980, the cases of discretionary life sentence prisoners were considered by the Parole Board only after the prisoner had served six and a half years in custody. With the introduction of the Preliminary Review Committee (PRC) in 1980, discretionary life sentence cases were reviewed in the same way as mandatory life sentence cases. After the lifer had served about 4 years in custody the case was referred to the PRC which, after assessing the requirements of punishment and deterrence and the future potential risk to the public, would recommend to the Secretary of State the date on which formal review of suitability for release by the Parole Board should start. Thereafter, the Parole Board would recommend release when it was satisfied that the prisoner no longer presented a danger to the public. Finally, recommendations for release had to be agreed by the Secretary of State (who was obliged by statute to consult the judiciary) before a release licence was issued.

Since the implementation, in October 1993, of provisions in the Prisoners and Criminal Proceedings (Scotland) Act 1993 [ See pages 11-12 for details of the judgements leading to the creation of this legislation.] the trial judge has been required to stipulate the period which a discretionary life sentence prisoner should serve in the interests of punishment and deterrence (the 'relevant part') [ With regard to discretionary lifers sentenced before implementation of the 1993 Act and still in custody on the commencement of the Act, the 'relevant part' was set retrospectively by the Lord Justice General in consultation with the trial judge, if still available. Discretionary life sentence prisoners released from custody prior to the commencement of the Act were deemed, by virtue of their release, to have served their relevant part.] . Only when the relevant part has been served is the case referred to the Parole Board which, sitting as a Discretionary Lifers Tribunal (DLT), considers the case at regular intervals until it is satisfied that the prisoner no longer requires to be confined. When release is ordered by the DLT the Secretary of State has no power to veto this decision.

Review of cases pre-1993

The flow diagram at Annex A shows the progress of the 41 discretionary life sentence prisoners towards release. Prior to the implementation of the 1993 Act, 16 discretionary lifers had their cases reviewed by the PRC. On average, cases were reviewed twice. Five prisoners had their case reviewed once, 6 twice, 3 three times, and 2 four times.

Of the 16 cases considered by the PRC, 6 cases were referred on to the Parole Board for consideration of release - 3 of whom were released. One was released on the sixth review of his case after serving 18 years and 4 months and another on his second review after serving 22 years and 5 months. The other lifer was sentenced in 1963 and released in 1969. Detailed records of this case are no longer held by Parole and Miscarriages Review Division and information on the Parole Board's consideration of the case is therefore not available.

Review of cases post-1993

Judges' Decisions on 'relevant part'

The trial judge (or, where the prisoner was sentenced prior to October 1993, the Lord Justice General) stipulated the 'relevant part' in 38 of the cases studied. In one case the relevant part had still to be set by the judge at the time of the research. In the 2 remaining cases the prisoner was released long before implementation of the 1993 Act and the judge was therefore not required to set a relevant part. Where a relevant part was set, it ranged from 5 to 18 years. The average length of time recommended was 10 years and 8 months. The average relevant part set for each type of crime is shown in Table 6.

TABLE 6: Average Relevant Part Set

* One discretionary lifer in each of these groups was released before implementation of the 1993 Act and, therefore, a relevant part was never set. Averages are calculated accordingly.

** The relevant part was still to be set for one discretionary lifer in this group at the time of the research. The average is therefore based on 2 of the 3 cases.

Consideration by a Discretionary Lifers Tribunal

Eight discretionary lifers had already served their relevant part by the time the 1993 Act came into effect and their cases were referred to a Discretionary Lifers Tribunal as soon as possible during the course of 1994. Although none of these 8 prisoners were released by a DLT on their first reviews, 3 were released after the third review of their cases in 1996. One of these prisoners had served 18 years and 4 months for manslaughter, one had served 17 years for attempted murder and the other had served 11 years and 9 months also for manslaughter. The remaining 5 prisoners had not been released at the time of the research and all had had 2 unsuccessful reviews.

At the time of the research there had been only one case in which a discretionary life sentence prisoner had completed his 'relevant part' after implementation of the Prisoners and Criminal Proceedings Act in October 1993. His case was reviewed by a DLT on expiry of the 'relevant part' in December 1995. This review did not result in his release. The remaining 29 prisoners in the sample were still to complete the 'relevant part' of their sentence.

To summarise, at the time of research 3 discretionary lifers had been released under the old system, 3 under the transitional arrangements and none had been released entirely under the new system.

Status of discretionary life sentence prisoners at the time of the research

Of the total of 41 discretionary life sentence prisoners whose records were available to the researchers, 37 were in custody on 31 December 1996 (the cut off point for data collection), including 2 who had been released and then recalled, and 4 were in the community on licence.

Time served by discretionary life sentence prisoners

The average length of time served (up to the point of first release) by the 6 released discretionary lifers was 15 years and 8 months. It should be noted, however, that this average is based on a very small number of cases and that the length of time served covers a broad spectrum ranging from 6 years 2 months to 22 years 5 months. (If the prisoner who served 22 years 5 months is excluded from the analysis, the average length of time served by the remaining 5 released discretionary lifers decreases to 14 years and 4 months.)

TABLE 7: Time Served by Released Discretionary Life Sentence Prisoners

* This lifer was released under the old system but a relevant part was set as he was still in custody at the start of October 1993.

Table 7 shows that in the 4 released cases where a relevant part had been set by the judge, a DLT required the prisoner to serve longer on grounds of public protection than the time set for punishment and deterrence.

Similarly, Table 8 shows that a number of the discretionary life sentence prisoners who had served their 'relevant part' but whose release at the time of the research had not been judged to pose an acceptable risk to the public had served fairly lengthy periods over and above the time set for punishment and deterrence.

TABLE 8: Total Time Served by Discretionary Lifers Still in Custody at the Time of the Research

Recall of discretionary life sentence prisoners

After release from custody both discretionary and mandatory life sentence prisoners remain on 'life licence' for the rest of their lives. This means that they are subject to supervision by a social work department until the Secretary of State decides, after consultation with the Parole Board, that this is no longer necessary and all are liable to recall to custody at any time should their behaviour or circumstances give either the Parole Board or the Secretary of State cause for concern. If recall of a discretionary life sentence prisoner is ordered by the Secretary of State, the circumstances of the recall must be considered by a DLT as soon as possible after the lifer is returned to custody. If the DLT is not satisfied that it is necessary that the prisoner be confined, it has the power to direct his immediate re-release. If immediate re-release is not ordered by the DLT, the lifer's case is reviewed (at intervals not exceeding two years) until the Tribunal is satisfied that it is safe to re-release the prisoner.

Two discretionary life sentence prisoners had been recalled to custody following breach of licence. One was released in 1993 and recalled 1 year and 8 months later for failing to be of good behaviour and keep the peace and breaching a condition of his licence. His immediate re-release was not ordered and the next review of his case was due in May 1998. The other discretionary lifer was released by a DLT in 1996 after serving 11 years and 10 months and was recalled after 24 days on licence for failing to keep in touch with his supervising officer, failing to keep his supervising officer informed of any changes to his circumstances and failing to reside in the stipulated accommodation. His immediate re-release was not ordered and the next review of his case was due in May 1997.

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