An appeal court ruling delivered by the Lord Justice General Lord Hamilton has rejected the proposed adoption of "life means life" sentences in murder cases in Scotland, following an appeal conducted personally by the Lord Advocate Elish Angiolini.

Angiolini had argued that in some cases a life sentence ought to mean a whole life tariff be imposed.  In particular, she argued that the "perceived upper limit" of 30 years for the punishment part of the sentence be subjected to new guidleines, and that a whole life tariff be applied in exceptional cases.

The Lord Advocate's appeals in the individual cases were allowed and increased sentences were applied, but the case has been disposed of as a test of Scottish sentencing policy, and has concluded that sentences of longer than 30 years may be imposed subject to judicial discretion, but a whole life tariff will not be adopted as part of the punishment part of a sentence. Such a move would be "difficult to envisage". 

However, an order for lifelong restriction could still be passed if appropriate, Hamilton said.

"The Scottish legislation requires the sentencer to specify a punishment part in years and months – though, as we have said, it would be open to him or her to specify a period which was in excess, even well in excess, of the offender’s anticipated lifespan. Although in one sense there is an equivalence between a punishment part and a determinate sentence of twice its length – the point of time at which the offender first qualifies for consideration for release on parole is the same – there is a measure of unreality about speaking of a determinate sentence of sixty years," Hamilton said.

"It is difficult to envisage such a sentence being passed in Scotland; almost certainly in such cases a discretionary life sentence or an order for life long restriction would be passed.

"In our view there may well be cases (for example, mass murders by terrorist action) for which a punishment part of more than thirty years may, subject to any mitigatory considerations, be appropriate. In so far as Walker and Al Megrahi may suggest that thirty years is a virtual maximum punishment part, that suggestion is disapproved."

The Lord Advocate appealed to the court against the punishment parts in three cases on the ground that the disposal in each case was “unduly lenient”, and asked the court for guidance under section 118(7) of the 1995 Act on punishment parts in murder cases.

"Because of the potential importance of the issues arising and because reconsideration might require to be given to certain views expressed by three-judge benches, a bench of five judges was convened for the purpose of hearing these appeals," Hamilton explained in his judgement. 

The crucial request of the Lord Advocate - that the punishment part of the sentence should reflect that life should mean life in some cases- was not accepted by the Court, as Hamilton emphasised the need for discretion in each case.

"The foregoing are guidelines and should be treated as such. The circumstances in which murders are committed and the circumstances of offenders vary substantially. It is important that sentencers should retain sufficient discretion in selecting a punishment part as to allow them to take the particular circumstances appropriately into account," he said

"We were referred to a number of other statistics and to the treatment of sentences for murder in a number of other jurisdictions. We did not find these statistics particularly helpful.  However, the Scottish Parliament has for this jurisdiction set the basic provision against which parameters are appropriately set by the High Court of Justiciary to meet Scottish conditions as they may prevail from time to time."