LIFE should mean life. Except it doesn’t. Not in Scotland.
Here, our judges do not have the tool of a whole-life order at their disposal; judges cannot ensure Scotland's worst criminals will never be released from prison.
This long-running issue came to the fore earlier this year when the man who brutally murdered schoolgirl Paige Doherty in March 2016 had his sentence reduced on appeal to just 23 years.
John Leathem (pictured) stabbed defenceless 15-year-old Paige at least 146 times at his shop in Clydebank in what the judge said was a “brutal, savage and frenzied attack on a young defenceless child before attempting to cover up his actions”.
Appeal court judge Lord Turnbull reduced Leathem’s sentence because the original 27-year minimum sentence, or ‘punishment part’ was "inconsistent with current sentencing practice". The punishment part had originally been 30 years with 3 years taken off for an early guilty plea but this was changed by the High Court to 26 years with 3 taken off.
The issue isn’t that Leathem and others have had their sentences reduced (or indeed increased) on appeal. The appeals system is an independent judicial process that politicians have no business meddling in. It acts as a self-correction to ensure we have consistency in the way our laws are applied in different cases to different people.
The problem is that for the most heinous crimes, what the courts and the public consider appropriate is often very different. Time and time again we see public outcry at lenient sentences for the worst sorts of offenders. Of course we must have consistency, but for murderers like John Leathem the sentences must be consistently tougher. In Scotland we are failing to make sure the punishment fits the crime.
Current sentencing guidance states that someone who murders a child or a police officer should be eligible for release on licence after around 20 years, subject to aggravating or mitigating factors specific to their case. Whilst the actual point at which they are released is up to the parole board, do we really consider it acceptable that such a person might be walking the streets after such a short time behind bars?
Current sentencing practice should be changed – and the first step on that road is to give judges the powers that they need.
There is a welcome debate at the moment around minor crimes and whether community-based alternatives are better than short prison sentences at reducing reoffending, but policymakers also need to examine whether sentencing guidelines for the most serious offences like rape and murder are fit for purpose. Prison will always be the right punishment for these crimes – and criminals’ time behind bars must match the wickedness of their actions. Perhaps, for example, if the guidelines made a whole life sentence the starting point for child killers, then judges would be obliged to explain why they had NOT imposed such an order for the individual case before them.
Surely we should empower courts and give judges, at the very least, the option to ensure that the worst criminals are kept off our streets forever, tipping the law back in favour of the victim and society.
The situation south of the border is different. They do have a system of whole-life orders that have been given to around 80 killers - including Moors murderers Ian Brady and Myra Hindley (pictured top). They are imposed where the trial judge decides that the requirements of retribution and deterrence can be satisfied only by offenders remaining in prison for the rest of their lives. Further, the Criminal Justice and Courts Act 2015 states that a whole life order should be the presumption for anyone who kills a police or prison officer in the course of their duty. And furthermore, the Criminal Justice Act 2003 calls for a whole life sentence for “the murder of a child involving the abduction of the child or sexual or sadistic motivation”.
Under these whole life orders, the minimum period before the offender can be paroled is set at the length of their life. This means they have no reasonable prospect of release. The exception is where the Home Secretary considers there to be ‘exceptional circumstances’ which justify release on ‘compassionate grounds’ such as if the prisoner is terminally ill. This exception is necessary so the law complies with the European Convention on Human Rights, specifically Article 3 (freedom from inhuman or degrading punishment).
So we can see from other parts of the UK that a workable system of whole-life orders is achievable.
Contrast Scotland, where judges’ hands are tied by current guidelines, meaning minimum sentences which outlast a killer’s natural life are likely to be struck down by the appeal courts. Judges are bound to apply the law as it stands; it is our job in Parliament to change the law if we think it isn’t working.
Whole-life sentences would give judges the ability to lock up murderers with only the smallest prospect of release and ensure life should mean exactly that for Scotland’s most dangerous criminals. Whilst I can fully appreciate the rehabilitation function that imprisonment can serve, offenders who commit these atrocious crimes will never be fit for release and reintroduction to society.
Whole-life orders would not only allow victims and their families the justice they deserve, they would also rebuild public confidence in sentencing and restore faith in a system which is presently seen by many as failing.
The SNP set up the Scottish Sentencing Council nearly two years ago but, since its establishment, the advisory body has done nothing by way of toughening sentences on murder. In fact, it has yet to issue any guidelines whatsoever.
If the SNP refuses to take action with the levers of Government, then the Scottish Conservatives are ready to step up. During this Parliament, I will be introducing a member's bill to Holyrood to introduce a form of whole-life sentences in Scotland. Whilst individual sentences will always be a matter for a judge, there must be tougher guidelines for the most barbaric crimes, and we must ensure life really does mean life for the worst offenders in society.
Liam Kerr is a Scottish Conservative & Unionist MSP for North East Scotland and Shadow Cabinet Secretary for Justice.