A violent criminal who raped a schoolgirl while on the run from Castle Huntly near Dundee could be out of prison years early after a landmark ruling at the Court of Appeal.
A special bench of seven appeal court judges decided on Tuesday that sentencing guidelines on minimum jail terms for life prisoners were flawed, which means some of Scotland’s most notorious life prisoners could be eligible for parole sooner than expected.
Robert Foye (31) raped a 16-year-old girl while living rough near Cumbernauld after absconding from the open prison in August 2007. He was given a life sentence in January the following year and told he had to serve a minimum of nine years in prison.
Foye and another sex offender, one-legged paedophile Morris Petch (53), have both appealed against the punishment part of their life sentences, which determines how long they must spend behind bars before they are even considered for release.
Petch was given a life sentence and ordered to serve 12 years in jail for raping two sisters aged between eight and 10 while a member of an Edinburgh sex ring.
Currently, everyone convicted of murder is given a mandatory life sentence, while the High Court can also impose discretionary life sentences for serious violent crimes such as rape or culpable homicide.
Since the incorporation of the European Convention on Human Rights in 2001, courts have been required to specify how long the “punishment” part of that discretionary sentence will be. At the end of that period the parole board considers the prisoner for release on licence. If he or she is still deemed a high risk to the public the offender will remain in jail and reconsidered every two years.
Prisoners who are sent to jail but do not get life sentences receive what are called determinate sentences and are normally first eligible for parole around halfway through that time.
However, as life prisoners, Foye and Petch were not eligible for parole until the end of their punishment periods, which are normally set at two-thirds of what the normal determinate sentence would be for similar crimes.
Their counsel Chris Shead claimed there must be an element of comparative justice and that their minimum jail terms should be reduced to reflect when determinate prisoners are eligible for parole as a result.
A specially convened bench of seven appeal court judges has now decided, by majority, that it is up to the parole board to judge whether releasing a prisoner will put public safety at risk.
By stripping out the public protection aspect of the sentence, they have agreed that the punishment period must be set at half of what the determinate sentence would have been. It means Foye could be eligible for release in 2014 two and a half years earlier than his original sentence had decreed and Petch could also have his sentence similarly reduced.
The ruling could even lead to anomalous situations where people on life sentences spend less time in jail than those given fixed sentences but who are refused parole and not released until the end of their sentence.
The appeal judges have referred their appeal on to three other judges to determine sentencing for the appellants.
They have now called on the Scottish Parliament to introduce a “clear, well considered legislative solution for determining the punishment part in discretionary life sentences and orders for lifelong restrictions.”
In his written conclusion the Lord Justice General said, “I have accordingly come, with regret, to the view that, however unsatisfactory it may appear as a matter of comparative justice, parliament has given statutory effect to an arrangement under which an indeterminate prisoner will, or at least may, become first eligible for consideration for parole at an earlier stage in his sentence than an equivalent determinate prisoner.
“If this situation is to be remedied, it is for parliament to remedy it. The divisions of opinion expressed judicially in these appeals would suggest that a clear, well-considered legislative solution is called for… these appeals will now be remitted to a court of three judges for disposal in light of the views expressed in the judgment of this court and of other relevant considerations.”
A Scottish Government spokesman claimed no prisoners would be released if the parole board believed there was still any risk to the public.
He said, “We are aware of the terms of the Appeal Court judgment its one effect is that some life prisoners may be able to apply for parole earlier than previously had been the case, but it is still absolutely the case that any life prisoner who the Parole Board considers the public need to be protected from will remain in prison.
“We are also considering whether changes to primary legislation are required to address the issues raised in the judgement, because in all circumstances punishment of the guilty as well as public safety is paramount.”
Conservative justice spokesman John Lamont said, “What kind of message does this send out to victims of crime in particular, that the men who caused them such harm could find the law working in their favour? It could pave the way for a flood of appeals from the most dangerous criminals.
“Although sentencing must always remain the prerogative of the judiciary, I think the immediate priority would be for all political parties to sit down and work out what we can do to stop this. It cannot be allowed to happen.”
Lib Dem justice spokesman Robert Brown added, “The justice secretary must make an immediate statement to parliament setting out the implications of the judgement and what action the Scottish Government intend to take.”