High Court of Justiciary,Edinburgh: Selecting an Appropriate Sentence for Extreme Crimes by a Young Offender: Campbell (Aaron) v HM Advocate,2019 SLT 1127

Commentary

It may be that the selection of a sentence for the crime of murder is now to be regarded as a very serious test of judicial resolve and sensitivity, two competing attributes. The task in hand was less onerous, perhaps, when a sentence for murder was imprisonment for life simpliciter leaving any release date for a quasi-judicial decision of the Parole Board and Ministerial discretion, neither of which was in a public forum nor tempered by the emotional immediacy of a criminal trial. In the present era, some insight into that judicial dilemma may be gleaned from the view that not much assistance can be derived from looking at other cases of murder in which punishment parts have been imposed: Neil v HM Advocate [2019] HCJAC 70 (at [13]). More particularly: ‘Every murder is a terrible crime, and it is neither appropriate nor productive for this court [the appeal court in Scotland] to carry out an exercise of balancing the awfulness of one murder against the awfulness of another’ (at [15]).

The very great anger, of the nearest relatives of the deceased child and the public, that was directed against Aaron Campbell, was palpable from the views expressed via the press and, apparently, social media. The extreme nature of the whole criminative circumstances ensured that the whole of the investigation and the subsequent case attracted national attention. Indeed, it was observed on appeal, perhaps for the assistance of public and press understanding of the sentencing process, that, as with all punishment parts, the period selected was not an indication of the date when the appellant would be released, but rather it specified the period which had to pass before he could even apply for parole (at [34]).

The difficulty of selecting an appropriate sentence was emphasised by the Court in commenting that the report prepared by a consultant forensic clinical psychologist to assist with that selection ‘made depressing reading, indicating that the Appellant presented with a range of traits on the psychopathy checklist and a range of factors indicative of potentially harmful sexual behaviour’ (at [4]).

The trial judge had been addressed on the approach to sentencing a child under reference to McCormick (Adam) v HM Advocate [2016] HCJAC 50; 2016 SLT 793 in which the dicta of Lady Hale in R (on the application of Smith) v Secretary of State for the Home Department (‘Smith’) [2005] UKHL 51; [2006] 1 AC 159; [2005] 3 WLR. 410; [2005] HRLR 33 were adopted. As Lady Hale had pointed out, juveniles are generally less blameworthy and more worthy of forgiveness than adult offenders, although each case must depend on its own circumstances (Smith at [25]). There is a difference between the juvenile offender whose crime reflects unfortunate yet transient immaturity and the rare juvenile offender whose crime reflects irreparable corruption. The trial judge in Appellant’s case had concluded that the assessment by the consultant forensic clinical psychologist placed the Appellant in the second and rare category, and, in regard to the appellant, rehabilitation and reintegration were forlorn hopes and no weight to these could be attached in the unusual circumstances of this case.

In deciding on the period of 27 years, the trial judge had considered Mitchell (Luke) v HM Advocate [2011] HCJAC 10; 2012 JC 13; 2011 SLT 349 (20 years selected and appeal refused) and R v Cornick (William Alexander) [2015] EWCA Crim 110; [2015] 1 Cr App R (S) 69 (25 years selected reduced on appeal to 20). ‘As dreadful as these cases were, it seemed to the trial judge that this case [Campbell’s] was considerably worse’ (at [10]).

The report of the consultant forensic clinical psychologist was accompanied by a report from a forensic psychologist, the latter being directed more to matters of the management of future risk which were not relevant at the sentencing stage (at [14]). Both of these experts were ‘extremely guarded, not to say pessimistic about the appellant’s capacity for change, but did not rule it out as a possibility’ (at [26]). The Court noted that ‘there is a difference between something which is a remote possibility and something which is an inevitable impossibility’ (at [26]).

Reference was made in the Appellants’ case to the general capacity for change in young people as meaning that even the most heinous crime was not necessarily evidence of an irretrievable depraved character. In particular, attention had been drawn in the earlier case of Smith, at [24], to the fact that it can be difficult even for experts to distinguish between the juvenile whose crime reflects irreparable corruption, and that was the position asserted by both the psychologists in the Appellant’s appeal (at 26]).

The Scottish appeal court also noted that three main reasons for distinguishing the position of child offenders from that of adults had been identified in Smith, at ([23]). These were (i) lack of maturity and an underdeveloped sense of responsibility, with a concomitant degree of impetuosity and recklessness; (ii) a greater likelihood of falling under negative influences, from peers or otherwise, including the difficulty of extricating themselves from a criminogenic setting; and (iii) the fact that personality traits of juveniles are more transitory and less fixed than in adults, which meant that there was a greater capacity for change, with a higher prospect of reintegration and rehabilitation. These factors may mitigate the offending and render an appellant less blameworthy than might be considered the case for an adult (at [27]).

The Scottish appeal court thought that the second of these factors appeared to be of little, if any significance. However, the remaining factors, immaturity transitory juvenile traits both applied to the appellant. The Scottish appeal court concluded that the likelihood for change in the appellant may indeed be limited, but on the basis of the material provided by the psychologists it was not possible to rule out entirely any residual capacity for change in such a young individual, ‘notwithstanding the atrocious nature of his crime’ (at [28]). The court reviewed a short series of Scottish sentencing appeals involving adults involved in comparably extreme cases, albeit with identifiable differences in fact. In HM Advocate v Boyle (Brian Robert) [2009] HCJAC 89; 2010 JC 66; 2010 SLT 29, a punishment part of 20 years was imposed on a 19-year-old for a murder involving violent assault then setting the victim on fire when alive, likened to medieval horrors. In Cowie (Colin Alexander) v HM Advocate [2009] HCJAC 76; 2010 JC 52; 2009 SCCR 838, a punishment part of 20 years was imposed for an unprovoked, cowardly attack on a stranger left to die at an isolated place, semi-naked and in freezing conditions.

In Fraser (Nat Gordon) v HM Advocate, 25 years for a punishment part was imposed for a planned killing of the wife of that Appellant, after which the body was concealed and destroyed. In Megrahi (Abdelbaset Ali) v HM Advocate 2002 JC 99; 2002 SLT 1433; 2002 SCCR 509, 27 years was imposed for the murder by placing on a plane a bomb that exploded at Lockerbie leading to the deaths of 270 people. In Walker (Andrew) v HM Advocate 2003 SLT 130; 2002 SCCR 1036, the court imposed 27 years for a deliberately planned robbery and murder by machine gun of three serving soldiers. In Smith (Thomas Bennie) v HM Advocate [2010] HCJAC 118; 2011 SLT 212; 2011 SCCR 134, the 35 years imposed was held not to be excessive for the murder of a woman and her 10-year-old daughter, with sadistic sexual torture of each victim.

In the Appellant’s case, the court noted, at [31], that following these earlier cases, a punishment part of 30 years was not to be considered a maximum, and that any suggestion to the contrary was not correct. There was difficulty in comparing one of these cases with another, yet it could be seen that even for an adult a punishment part of 27 years would be reserved to mark only very serious crimes. One would expect the sentence on a youth for comparable crimes to be proportionately lower: following Hibbard v HM Advocate [2010] HCJAC 111; 2011 JC 149 (sub nom H v HM Advocate) 2011 SLT 247. In the circumstances of the Appellant’s case, the court concluded that a punishment part in excess of 20 years was plainly merited, and in all the circumstances, the court substituted 24 years in place of the 27 imposed by the trial judge (at [33]).

The appeal cases considered at the appeal are depressing as many of them concern young people who have committed the most serious of crimes and are to be detained, in effect, for the foreseeable future. The Appellant’s case is notable, as was McCormick (Adam) v HM Advocate, for having been heavily influenced by the wider jurisprudential concepts in R (on the application of Smith) v Secretary of State for the Home Department. The crucially significant aspects in the Appellant’s case, perhaps persuasive in other jurisdictions with a similar sentencing dilemma, are that at the point of sentencing a young person for very serious cases, the relevance of future risk is limited to its impact on issues of punishment and deterrence. Future risk is a matter for the Parole Board not for the sentencing judge in selection of the punishment part (at [17]). Also, it is important to select a sentence that gives some recognition to the process of maturity (at [27]).

Yet, the overarching and agreed pessimistic assessment of the psychologists in their respective reports for the court is a factor that cannot be ignored and those with experience of such assessments may be tested in recalling or finding a similar sort of professional view. Time will tell whether, and if so to what extent, that disheartening assessment relating to such a young person was justified in the context of finding an accurate and fair balance between retribution and deterrence, and separately rehabilitation, but, at present, the year 2043 does seem a long way off.