Stewart v Her Majesty’s Advocate: HCJ 6 Sep 2002

The appellant had been sentenced to life imprisonment for murder in 1993. He was an existing adult mandatory life prisoner for the purposes of Part I of the Schedule to the 2001 Act. In 2002 the High Court specified the punishment part of his sentence as 14 years. The appellant appealed against this order on the ground that the punishment part was excessive. He drew attention to the fact that he had been told that he was to be considered for release after 10 years under the pre-existing system, whereas the effect of the order was that the Parole Board would be unable to consider his release until he had served 14 years. He claimed a legitimate expectation that he would be released after 10 years and that the court should take into account the prejudicial effect of selecting a punishment part which conflicted with the expectation which had been entertained by the appellant prior to the coming into force of the 2001 Act.
Held: The argument failed. Lord Justice General (Cullen): ‘In considering this submission it is important to bear in mind that under para 13 of the Schedule to the 2001 Act, the question is what would have been specified as the punishment part if the new statutory provisions had been in force at the time when the accused was sentenced. It follows that matters which were not known at that time cannot properly be taken into account (cf Murray v HM Advocate, [2000 JC 102, 107]). Accordingly, in our view, the prior arrangements for considering whether the appellant should be released on licence should not be taken into account in the fixing of the punishment part. We can well appreciate that the latter may well cut across these arrangements. However, the need, if any, for the modification of the new statutory provisions on that account was a matter for the legislature.’


[2002] ScotHC 121, 2002 SLT 1307




Convention Rights (Compliance) (Scotland) Act 2001



Cited by:

AppliedMcCreaddie v Her Majesty’s Advocate HCJ 6-Sep-2002
. .
CitedFlynn, Meek, Nicol and McMurray v Her Majesty’s Advocate PC 18-Mar-2004
PC (High Court of Justiciary) The applicants had each been convicted of murder, and complained that the transitional provisions for determining how long should be served under the life sentences infringed their . .
Lists of cited by and citing cases may be incomplete.


Updated: 08 June 2022; Ref: scu.189841