Introduction

The case of Keirin McMillan or Elliott, Aron McMillan, and Levi Hunter or Brown v Her Majesty's Advocate ([2020] ScotHC HCJAC_41) presents a significant judicial examination of sentencing principles applied to young offenders convicted of heinous crimes. The appellants, aged between 16 and 19, were found guilty of grievous assaults and murder in Edinburgh. This commentary delves into the court’s reasoning, the legal precedents considered, and the broader implications of the judgment on future sentencing of young offenders in Scotland.

Summary of the Judgment

The Scottish High Court of Justiciary reviewed appeals by three young offenders—Keirin Elliott (19), Aron McMillan (17), and Levi Brown (17)—convicted of the brutal murder of Alasdair Forsyth in February 2019. The initial sentences imposed detention for life with punishment parts ranging from 17 to 18 years. The appellants contended that these sentences were excessive, arguing that their youth and troubled backgrounds were not adequately considered. The court agreed, finding that the trial judge had not sufficiently weighted the appellants’ ages and personal histories. Consequently, the punishment parts were reduced to 16 years for Elliott and 13 years for both McMillan and Brown.

Analysis

Precedents Cited

The judgment references several key cases and legal provisions that shape sentencing practices, particularly for young offenders:

• Prisoners and Criminal Proceedings (Scotland) Act 1993, s 2(2): Defines the punishment part as the minimum period before parole eligibility, focusing on retribution and deterrence.
• Kinlan and Boland (2019) JC 193: Discusses the relevance of planning and weapon use in sentencing decisions.
• Mitchell v HM Advocate [2010] HCJAC 54: Addresses the severity of murder by stabbing, comparable to the case at hand.
• Hay v HM Advocate [2020] HCJAC 30: Emphasizes the distinct approach required when sentencing young offenders.
• Green v HM Advocate (2020) JC 90: Highlights considerations of culpability and maturity in young offenders.
• McCormick v HM Advocate (2016) SCCR 308: Stresses the importance of the best interests of child offenders in sentencing.
• Rizzo v HM Advocate [2020] HCJAC 40: Clarifies that rehabilitation prospects influence the custodial term but not directly the punishment part.
• R (Smith) v Secretary of State for the Home Department [2006] 1 AC 159: Discusses the role of sentences in promoting maturation and responsibility.

Legal Reasoning

The court’s legal reasoning balanced the severe nature of the crime with the age and personal circumstances of the offenders. Key points include:

• Retribution and Deterrence: The punishment part aims to satisfy societal demands for retribution and to deter future offenses. However, the court recognizes that these must be balanced against the capacity for rehabilitation, especially in younger offenders.
• Culpability and Maturity: Younger offenders may possess reduced culpability due to their developmental stage and lesser capacity for mature judgment. The court considered the degree of blameworthy conduct relative to their age.
• Best Interests of the Child: In line with the UN Convention on the Rights of the Child, the court prioritized the best interests of the child, emphasizing rehabilitation and potential for reintegration into society.
• Impact of Troubled Backgrounds: The offenders’ histories of abuse, neglect, and mental health issues were significant in assessing their culpability and the appropriateness of lengthy sentences.
• Aggravating Factors: The planned nature of the robbery, use of weapons, excessive violence, and attack on a vulnerable individual were acknowledged as aggravating factors necessitating substantial punishment parts.

Impact

The judgment sets a nuanced precedent for sentencing young offenders in Scotland, particularly in cases involving severe crimes like murder. It underscores the judiciary's commitment to balancing the need for justice and societal protection with the recognition of a young offender’s potential for change and rehabilitation. Future cases involving young offenders will likely reference this judgment to justify lighter sentencing when appropriate, provided the offenders' backgrounds and capacities are adequately considered.

Complex Concepts Simplified

Punishment Part

The punishment part is the minimum period an offender must serve before being eligible to apply for parole. It is not the total time they will spend in custody but rather a period deemed sufficient to meet retribution and deterrence objectives.

Culpability

Culpability refers to the degree to which an offender is considered morally and legally responsible for their actions. Factors like maturity, intent, and circumstances are assessed to determine the level of blame.

Retribution and Deterrence

• Retribution: Ensuring justice by punishing the offender proportionally to the crime committed.
• Deterrence: Preventing future offenses by discouraging the offender and others from committing similar crimes.

Rehabilitation

Rehabilitation involves efforts to reform the offender so that they can re-enter society as a law-abiding citizen. It is a key consideration, especially for younger offenders, focusing on addressing underlying issues that contribute to criminal behavior.

Conclusion

The High Court of Justiciary's decision in [2020] ScotHC HCJAC_41 represents a critical intersection between punitive measures and rehabilitative considerations in the sentencing of young offenders. By adjusting the punishment parts to reflect the appellants’ ages and troubled backgrounds, the court emphasized the importance of individualized sentencing that acknowledges the potential for change and the unique vulnerabilities of youth involved in serious crimes. This judgment reinforces the legal framework that seeks to balance justice with compassion, setting a meaningful precedent for future cases and contributing to the evolution of sentencing practices within Scottish law.