Kelly v HM Advocate / Robertson v HM Advocate



These cases deal with discretionary life sentences for sex offenders.


Nature of the cases


These appeals are against the sentence of life imprisonment. An appeal made by Francis Kelly in 2000 was successful, while an appeal made by Neil Robertson in 2004 was unsuccessful.



Francis Kelly pled guilty at the High Court at Dundee in April 1999 to charges of indecent breach of the peace and sexual assault. He had committed other serious crimes in the past, some also of a sexual nature. A background report said that he was likely to offend again. The judge sentenced him to life imprisonment ordering him to serve three-and-a-half years in custody. This meant that he could not be considered by the parole board for release from prison into the community on licence until after at least three-and-a-half years. The parole board could either accept his application for release on licence, or continue to reject applications for the rest of his life if they felt he was an ongoing threat to the public. If he was released into the community at any point, he would be under social work supervision for the rest of his life.

Neil Robertson pled guilty at the High Court at Glasgow in June, 2003, to indecent sexual behaviour towards a young girl and having indecent images of children on his computer. In the past he had committed other crimes involving dishonesty and deception and, like Mr Kelly, a background report said he was likely to reoffend. He was given a life sentence and ordered to spend six years in prison before being considered for release on licence.



Both offenders appealed to the High Court arguing that instead of life sentences they should have been given extended sentences. Extended sentences were created by law in 1998 and combine a set period in prison with a further set period of supervision in the community (up to 10 years depending on the offence).



Mr Kelly won his appeal when three High Court judges ruled that the life sentence was too high and that an extended sentence should be imposed instead. They substituted a set period of imprisonment of seven years and the maximum extended period of 10 years. This meant Mr Kelly could be released from prison on licence by the parole board after he had served at least half of the seven years, and (under the law at the time) had to be released on licence after two-thirds of the time was served. However, if he committed another offence while on licence, he could be taken back to prison to serve the remaining time of the sentence (including the extended period). The judges ruled that an extended sentence was enough to protect the public.

Mr Robertson, on the other hand, lost his appeal, when the judges hearing his case ruled that because of his high risk of re-offending, a life sentence was required to protect the public. A life sentence meant that Robertson would not be released into the community unless the parole board was satisfied that it was safe to do so. And if he was released from prison, he would remain under supervision on licence for the rest of his life.


Kelly v HM Advocate 

Robertson v HM Advocate