The Punishment Part: Life and Order for Lifelong Restriction
The Order for Lifelong Restriction (OLR) is an indeterminate sentence. This means there isn’t a set release date, but a minimum time that must be spent in custody before the individual can be considered for release by the Parole Board for Scotland. This is the punishment part. In our last blog, we looked at the punishment part, how the length of it may be determined, and what happens once it comes to an end.
The OLR isn’t the only indeterminate sentence in Scotland, there’s also the life sentence. The life sentence must be given where someone is convicted of murder, but a judge can also impose the sentence where there have been other serious offences such as armed robbery or serious sexual assault. Research in 2020 showed that life sentences for murder make up the large majority – on average 71% of all life sentences between 2010 and 2020 were for murder. In contrast, the OLR is often given where there is a variety of offences. In our research The Offending Behaviour of Those Sentenced to the Order for Lifelong Restriction, published in 2022, we found that 95% of those who received the sentence had an offending history involving more than one type of offence (such as violent, sexual, intimate partner violence, or non-violent/non-sexual).
When a life sentence is imposed, like the OLR, the judge is required to set a punishment part. In Scotland there’s no such thing as a custodial sentence without the possibility of parole. The punishment part for a life sentence can be decades long – in Scotland the longest punishment part for a life sentence to date has been 37 years. In comparison, the longest punishment part for an OLR to date has been 16 years, though there have been individuals who have then been convicted of further offences after receiving an OLR, and have therefore received additional punishment part time.
There’s a complex calculation process in setting the punishment part for the OLR sentence, and it will always be a shorter period than if the individual had received a determinate sentence (a sentence with a fixed release date). This is because the OLR provides for the lifelong risk management of that individual – if they are released from custody, they will still remain subject to a risk management plan for the rest of their life. That’s not always the case for a determinate sentence. You can find out more about how a judge calculates the punishment part for an OLR here. It’s important to be clear that a shorter OLR punishment part doesn’t mean the individual will be released at an earlier point than if they had received a determinate sentence – when an OLR is imposed, the individual will only ever be released when the Parole Board are satisfied that imprisonment is no longer necessary for public protection.
Research in 2020 showed that, between 2007 and 2017, the average punishment part for a life sentence was 14 years, whereas for an OLR it’s 5 years. Since the OLR was introduced in 2006, the average length of punishment part each year has been generally reducing. In contrast, for life sentences, the average length of punishment part has been increasing. This difference is something we’re interested in exploring further. For example, by comparing the risk and need profiles of those who received a life sentence to those who received an OLR.
Sentencing is a very individual process. The Scottish Sentencing Council provide evidence-based sentencing guidelines to support the decision-making process, but only the sentencing judge is in a position to select an appropriate sentence. In cases where there’s strong public interest or legal significance, the Judiciary of Scotland may publish sentencing statements. These are designed to help improve public understanding of sentencing decisions. For example, upon imposing an OLR and setting the punishment part, the judge will explain to the individual:
“Be clear, the sentence imposed is not a sentence of imprisonment of 5 years. It is an order for your lifelong restriction which is a sentence of imprisonment for an indeterminate period. The punishment part represents only the number of years which must pass before you are first eligible to make an application for parole. It does not follow however that you will then be released. You will be released from prison only at such a time as the Parole Board for Scotland considers it is no longer necessary for the protection of the public that you continue to be held in prison.”
You can find sentencing statements on the Judiciary of Scotland website here, please be aware these may contain graphic or upsetting details.