News In Focus

Criminal law commencement removes "Petch and Foye" anomaly

24 September 2012

The legal anomaly whereby prisoners on a discretionary life sentence could become eligible for parole earlier than those serving sentences of a fixed length has been removed by new statutory provisions that come into force today.

The Criminal Cases (Punishment and Review) (Scotland) Act 2012 corrects the difficulty in the law identified by the criminal appeal court in the case of Petch and Foye v HM Advocate.

It restores the court's discretion to set a "punishment part" of a non-mandatory life sentence that it considers appropriate in all the circumstances of a particular case to ensure appropriate punishment of the offender.

The Act also puts in place a framework that will enable, as far as possible within devolved competence, the disclosure of information by the Scottish Criminal Cases Review Commission in cases where an appeal has been abandoned or has fallen.

Justice Secretary Kenny MacAskill said: “It is very important to ensure that the courts have compete confidence that when they impose a discretionary life sentence or an order for lifelong restriction, they can impose an appropriate period of punishment as part of the overall sentence. These types of sentence are an important way of ensuring serious offenders are effectively punished and the public are protected."

He added: "It is important to note that no prisoner has been released from prison directly as a result of the Petch and Foye judgment, as the Parole Board plays an important role in assessing the risk individual offenders pose. If there is any question of them being a danger to the public they will remain behind bars.

"However, it can be deeply traumatic for victims and their families when they hear courts are not able to punish serious offenders appropriately and I hope this legislation will bring reassurance that public safety is the priority.”

The change is not retrospective and does not impact on cases and appeals currently being heard.