Lord Justice General

Lord Marnoch

Lord Clarke

Appeal No: 530/02












Appellant: G. Jackson, Q.C.; John MacAuley & Co., Glasgow

Respondent: R. Dunlop, A.D.; Crown Agent

30 October 2002

[1]On 13 May 1985 the appellant was found guilty of a charge of murder and robbery in the following terms:

"On 17 January 1985 at a place or places between the Royal Bank of Scotland, 42 John Street, Penicuik, Midlothian and the terminus of a road leading from the A702 Edinburgh to Biggar Road and known as the Flotterstone Glen Road, Flotterstone, Midlothian, the exact place or places being to the Prosecutor unknown, you did assault Terrence Stephen Hosker, Staff Sergeant, David Forbes Cunningham, retired Army Major and John Meikle Thomson, Private, all attached to the Scottish Infantry Depot, Glencorse Barracks, Milton Bridge, Midlothian and did repeatedly discharge at them a loaded firearm, namely a 9 mm sub machine gun, repeatedly shoot said Terrence Stephen Hosker in the body and head, shoot said David Forbes Cunningham in the head and shoot said John Meikle Thomson in the arm and in the head and did murder said Terrence Stephen Hosker, David Forbes Cunningham and John Meikle Thomson and rob them of a bank bag containing £19,000 of money".

The appellant was also found guilty of a charge of breaking into premises at a camp at Kirknewton, Midlothian and a charge of attempting to pervert the course of justice by threatening another person to make a claim that the Provisional IRA had carried out the murders.

[2]The trial judge, Lord Grieve, sentenced the appellant to life imprisonment on the charge which we have quoted and made a recommendation under section 205A of the Criminal Procedure (Scotland) Act 1975 that the appellant should not be considered for release on licence until the expiry of 30 years. He admonished the appellant in respect of the other two charges.

[3]On 17 June 2002 Lord Reed made an order specifying "the punishment part" of the life sentence for the purposes of para. 13 of the Schedule to the Convention Rights (Compliance) (Scotland) Act 2001 as 30 years. The appellant has appealed against that order.

[4]The report by the trial judge does not contain a detailed account of the circumstances in which the murder was committed. However, in regard to his recommendation he indicated the nature of the crime as follows:

"The offence libelled in the second charge was of such brutality, and must have been committed with such a callous disregard for human life that I considered a recommendation as provided for by Section 205A of the Criminal Procedure (Scotland) Act should be made. I considered that the nature of the offence, and the fact that it involved three men, justified me in recommending that the accused not be considered for release on licence until the expiry of 30 years. This was a calculated crime; the accused, if he was to achieve his purpose, had to kill. I am quite satisfied on the evidence that the crime was carefully planned, and I am also quite sure that the substance of the evidence given by the accused was a tissue of lies. A person who could bring himself to do what he did is not fit to live in a society which still regards itself as civilised. Whether full effect is given to my recommendation will no doubt depend on how the accused conducts himself in prison".

In his report Lord Reed says that in fixing the punishment part he stated in court that he took as his starting point that the appellant had committed multiple murders, of two soldiers and a retired soldier, who were acting in the course of their duties, for the purpose of robbery. These factors in themselves pointed to a period substantially above the usual range. The case was further aggravated by the circumstances that the murders involved the use of a machine gun, and that they were deliberately planned. The three men were effectively executed. He had also to take into account the other offences of which the appellant was convicted. This was a case of truly exceptional gravity, even when compared with other appalling cases in which minimum periods had recently been set.

[5]Mr Jackson, who appeared for the appellant, accepted that the fixing of "the punishment part" for the purposes of the 2001 Act was a different exercise from the making of a recommendation under section 205A of the 1975 Act or the equivalent provision in the 1995 Act. He pointed out that in recommending the 30 year period the trial judge had recognised that whether full effect was given to his recommendation would depend on how the appellant conducted himself in prison during that period. Mr Jackson made it clear that he did not disagree with the description of the murder as showing callous disregard. Furthermore he did not quarrel with the view of Lord Reed that the punishment part should be "at the top end". He said that he would not disagree with an approach to fixing the punishment part which started from a base of 20 years. However, he submitted that the sentencing judge had gone too far fixing a period of 30 years, particularly when a period of 25 years had been selected in the case of two extremely serious murder cases mentioned by Lord Reed in his report, namely those of Robert Francis Mone and Howard Charles Wilson.

[6]Section (2) of the Prisoners and Criminal Proceedings (Scotland) Act 1993, as amended by the 2001 Act, defines "the punishment part" of a life sentence as -

"Such part as the court considers appropriate to satisfy the requirements for retribution and deterrence (ignoring the period of confinement, if any, which may be necessary for the protection of the public), taking account -

(a)the seriousness of the offence, or of the offence combined with other offences of which the life prisoner is convicted on the same indictment as that offence;

(b)any previous conviction of the life prisoner; and

(c)where appropriate, the matters mentioned in paragraphs (a) and (b) of section 196(1) of the 1995 Act".

[7]In Stewart v. H.M. Advocate 6 September 2002, unreported, the court pointed out at para. 18 it was plain that there could be a wide variation in the seriousness of a murder case according to the circumstances in which it took place and the circumstances of the offender. It mentioned, as examples of factors which were relevant to aggravation, conduct suggesting an intention to kill, the use of prolonged or savage violence and the use of a lethal weapon. Other examples are where murder is committed for the purpose of gain or in an attempt to pervert the course of justice, or where the murderer has sought to evade detection by concealing or dismembering the body.

[8]In the absence of significant mitigation most cases of murder would, in our view, attract a punishment part of 12 years or more, depending on the presence of one or more aggravating features. In the individual case account has also to be taken of the seriousness of the offence combined with other offences of which the accused has been convicted on the same indictment, along with any previous convictions of the accused, in accordance with the terms of section 2(2) of the 1993 Act, as amended, to which we have referred. As the sentencing judge suggests in his report in the present case a number of murder cases might be of such gravity, for example where the victim was a child or a police officer acting in the execution of his duty, or where a firearm was used, that the punishment part should be fixed in the region of 20 years. However, there are cases - which may be relatively few in number - in which the punishment part would have to be substantially in excess of 20 years.

[9]We are in no doubt that in the present case the factors highlighted by the sentencing judge put it clearly into the latter category of case. We have taken into consideration that in the case of the murders committed by Robert Francis Mone and Howard Charles Wilson the punishment part was fixed at 25 years. However, these cases have not been the subject of consideration by the appeal court, and there is, as in many instances, difficulty in comparing the nature and gravity of one case with those of another.

[10]In all the circumstances we are satisfied that the sentencing judge was well justified in selecting as the punishment part a period in excess of 25 years. In saying that we have particularly in mind the fact that this was a deliberately planned execution of a number of soldiers acting in the course of their duty and that it was done in order to achieve gain. On the other hand, it is not impossible to conceive circumstances in which there might be even greater aggravation, let alone the existence of significant previous convictions. In all the circumstances we have reached the view that the punishment part of 30 years, which the sentencing judge fixed with some hesitation, was excessive. We will quash the order for that period and substitute an order of 27 years.

[11]We should add that in arriving at that conclusion we have not proceeded by reference to the period recommended by the trial judge under section 205A of the 1975 Act. As the court observed in Stewart v. H.M. Advocate, the exercise of fixing a punishment part is a separate matter from that of arriving at a recommendation and may be influenced by different factors. The period of 30 years was, it seems to us, recommended essentially by reference to the nature and circumstances of the crime committed by the appellant. However, unlike a punishment part, it was capable of being reduced in the light of the conduct of the appellant.