Thomas Ross QC: Should Scottish judges have the power to order whole life tariffs?

Thomas Ross QC

On Thursday 18th November 2021 I appeared on John Beattie’s Drivetime Show on BBC Radio Scotland to discuss the circumstances surrounding the tragic death of Esther Brown – and the criminal proceedings that followed. It occurred to me that there were certain public misconceptions about the case and its outcome. I address those here. First the relevant facts.

Jason Graham was born around 1991. On 31st May 2013 he knocked upon the door of a 61-year-old female in the Possilpark area of Glasgow. When she answered the door he asked her for a cigarette. He then forced his way into the house. He knocked her over and repeatedly punched her – then he raped her. In January 2014 he pleaded guilty to his crimes. A sentence of 90 months was imposed (7 ½ years) – reduced from 120 months (10 years) to reflect his plea of guilty. The sentence was backdated to the date upon which Jason Graham had first appeared in Court.

In January 2014 a long-term prisoner like Jason Graham was entitled to be released after he had served two-thirds of his sentence. No application to the Parole Board was necessary – it was automatic. As a result, Jason Graham was entitled to be released after he had served 60 months. The state had no right to keep him in custody beyond that point. It appears that he was released sometime in 2018 – as the law would have then demanded.

It has clearly entered the public consciousness that, in some circumstances, a prisoner who commits a crime before all of his sentence has expired can be returned to prison. The rules are complicated – but in short, this concept had absolutely no relevance to Jason Graham’s case. By the time he murdered Esther Brown on 28th May 2021, more than 90 months had passed since the operative date of his sentence. In other words, by the day of the murder, every day of his previous sentence had come and gone.

Esther Brown (aged 67) met her death in the most terrible circumstances. It appears that she was a much-loved member of her community, widely admired for the work that she did for others less fortunate. On 28th May 2021 Jason Graham forced his way into her flat, punched and kicked her and struck her over the head with a piece of wood – then raped her and murdered her. The cause of death was blunt force trauma to the head. It is hard to imagine anything more wicked. Jason Graham’s DNA was found at the scene. When the case came to Court he pleaded guilty and on Wednesday 17th November 2021 he was sentenced to life imprisonment with a punishment part of 19 years.  

I come to the first misconception. In the Scottish Parliament on Thursday 18th November 2021, Douglas Ross (leader of the Scottish Conservatives) raised concerns regarding the case, in which he referred to the fact that “Jason Graham was released early”. This claim was understandably repeated on the Drivetime programme. In both cases, the implication was that Jason Graham was only in the community able to commit his crimes because he had been “released early”. As I have explained above, this was not correct. 

The second misconception is much, much more important. In the immediate aftermath of sentence being passed, friends of Esther Brown understandably reacted. One expressed the concern that Mr Graham “poses a danger when he is eventually released”. A second stated “the sentence is very disappointing as many of us in the surrounding community have been victims of perpetrators being let back into society”. Both were clearly contemplating the likelihood of Mr Graham being released from prison after the passing of 19 years. I do not believe that there is the remotest possibility of that ever happening – Jason Graham will be in prison for the rest of his natural life.

When I made that prediction on the BBC Radio Scotland Drivetime show I was challenged on the basis that he had “only been given 19 years”. Well, after 19 years Jason Graham can apply for parole. In the same way, when the current Lord President retires I can apply for his job. In neither case is there the slightest chance of the application being granted. What is more important is the public perception that he might be released after 19 years, when there is no realistic chance of that happening.

If I am correct in the prediction – that where X rapes a stranger in her own house in 2013 – then rapes and murders a different stranger in her own house in 2021 – no society that values the safety of its citizens could even contemplate releasing X back into the community – then why not tell X that in public? 

If Jason Graham had committed the crimes in Carlisle – rather than Glasgow – the position might have been different. Society is still reeling from the crimes of Wayne Couzens – sentenced to life imprisonment with a whole life tariff for the rape and murder of Sarah Everard. Some people – usually people who wish to separate the countries – claim that Scots are naturally more liberal in matters of sentencing than their English neighbours – but even amongst ‘liberal Scots’ I did not hear a single person suggest that the imposition of a whole life tariff upon Wayne Couzens was excessive. The friends and family of Sarah Everard – unlike those of Esther Brown – might take some small comfort that Couzens will never be released. Further, a person who might be inclined to commit crimes of the sort under discussion might be deterred by the prospect of spending the rest of his life in prison. So why are Scottish judges denied a power available to their English counterparts? 

Well things could have been different. In 2019 the Whole Life Custody (Scotland) Bill was introduced and debated in the Scottish Parliament but was quashed before it really got off the ground.

In my lifetime hundreds of thousands of people have committed crimes. I don’t know the names of 99.99 per cent of them – but I know the names of Peter Tobin and Peter Manual and Angus Sinclair. Why? Because their crimes were so awful that they wrote their way into popular history. In Scotland, I estimate that perhaps one person every five years would even be considered for a whole life tariff.

People who commit crimes as terrible as those committed by Jason Graham should not be considered for release. A public judicial statement to that effect would give comfort to those grieving and might deter others from following in his evil footsteps – both of which provide good reason to reconsider the issue.

This article first appeared on the Scottish Criminal Law Blog