As with most notorious crimes that make the headlines, politicians can’t help but take part in some political point scoring. Ruth Davidson is no exception, and her call for whole- life tariffs after a successful sentence appeal in a harrowing murder case is quite opportunistic. This blog will briefly comment on three issues of this debate – judicial independence and the importance of avoiding undue political influence, how this debate fits in with international norms, and the current position in Scotland concerning life prisoners.

Western democracies consider judicial independence a fundamental and essential element of any free society. Political interventions into sentencing create unnecessary and undesirable interference with the judiciary’s proper consideration of the law and facts of a case. To maintain public confidence and integrity in the legal process, the constitutional guarantee of a fair trial and being treated fairly under the law requires that the judiciary and politics be kept separate. This means that within set legal limits, judges should be left to decide sentence length based on the facts of a case and its compatibility with judicial policy, international norms and convention rights.

The constitutional guarantee of a fair trial and being treated fairly under the law requires that the judiciary and politics be kept separate

Moreover, the debate surrounding ‘life-means-life’ sentences is misleading. Across Europe there are no such sentences without a mandatory review period set by law within each individual state. For example, 16 European countries set this period at approximately 25 years. Most other European countries allow considerably less time in prison before review is required, with 13 EU countries setting this at 15 years or less before the review mechanism kicks in[1]. So even with a ‘life-means-life’ tariff, it is likely Scotland would follow suit and have a review mechanism protected by statute. The only question remaining would be which sentencing policy we would follow. Either way, life still doesn’t particularly mean life.

There are other ways that life sentences are misleading. Prior to 2001[2], life-serving prisoners were not given a minimum sentence in Scotland. This was viewed as being incompatible with the European Convention on Human Rights and has since been rectified so that in Scotland, a judge must always set a minimum term. However, even when a minimum term is set, a life serving prisoner can still spend countless years, sometimes decades, beyond their tariff without ever committing another crime. Simple compliance with the prison regime is now no longer enough to secure progression or release (Crewe 2011)[3]; and our experience suggests that sentence progression is characterised by discretionary, subjective and non-judicial decision-making. For example, progression and release can be denied as a consequence of having a “bad attitude” or around concerns that post-release goals may be unrealistic. The most common reason, however, is the failure to abstain from taking drugs. Not only does this amount to criminalising addiction, but it is not uncommon that the addiction was acquired by the prisoner whilst serving their sentence, often to cope with prison itself.

Even when a minimum term is set, a life serving prisoner can still spend countless years, sometimes decades, beyond their tariff without ever committing another crime

Some might find this fair enough – if you can’t stop taking drugs you should not be allowed in society – except it is now widely accepted that drug addiction should be treated as a health issue and not a criminal justice problem. So effectively in Scotland we appear to be against whole-life tariffs, or at least tariffs without a designated time for sentence review, however we allow people to spend decades in prison for what is effectively a health problem.

The Scottish Conservatives might want to consult some hard data rather than the alternative facts of tabloid headlines about ‘soft touch’ Scotland. There has been a steady decrease in most crimes for years (and a sharp drop in the number of homicides, from 117 in 2011 to 59 in 2016), but sentence lengths are increasing. The average tariff for a life sentenced prisoner in 2000 was 10 years; by 2014, the average tariff had increased 38% to more than 14 years. Sentences are getting longer, and we are beginning to see more and more sentences of two decades or more. Despite Scotland’s sense of itself as less punitive than its neighbour to the south, its sentencing is moving more in the direction of its neighbour to the west, across the Atlantic.

Sentences are getting longer, and we are beginning to see more and more sentences of two decades or more … what social benefit is achieved by doubling or even tripling sentence length?

In addition to asking why sentences are already increasing so much, we should be asking what social benefit is achieved by doubling or even tripling sentence length? After about ten years or so prisoners will have done every programme, taken every course, worked every job in a prison. After that, those faced with another decade or two of incarceration will have very little to engage them, to give them hope and to provide the motivation needed to re-join and participate as positive members of communities.

This blog appeared as a guest post by SPARC for the SCCJR 

[1] (Vinters and Others v The United Kingdom 2003 at 68).

[2] Convention Rights (Compliance) (Scotland) Act 2001

[3] Crewe, B. (2011) ‘Soft power in prison: Implications for staff-prisoner relationships, liberty and legitimacy’, European Journal of Criminology 8(6) 455-468