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[2017] HCJAC 49


Lord Justice Clerk

Lord Drummond Young

Lady Clark of Calton











Appellant:  L Kennedy; John Pryde & Co, Edinburgh for Turnbull McCarron, Glasgow

Respondent:  J Farquharson, AD; Crown Agent


29 June 2017

[1]        The appellant was sentenced to an Order for Lifelong Restriction (“OLR”) after being convicted of two charges of rape.  These were a charge of raping his cousin (born 1993) on various occasions between 2003 and 2011; and of raping another female on 25 October 2014.  In making a Risk Assessment Order the trial judge was conscious that evidence had been given at trial on two further charges, withdrawn for evidential reasons.  These were in respect of 2 further female complainers.  One was a charge of lewd and libidinous practises towards a 7 year old girl; the other was a breach of the peace with a sexual element.

[2]        By the time the Risk Assessment Report (“RAR”) was prepared, the trial judge was unavailable and the matter was dealt with by another judge who concluded that the risk criteria had been met, and imposed an OLR. 

[3]        This sentence was challenged on the basis that it was excessive and disproportionate, specifically:

  • Even with a classification of “high risk” there was an alternative available in the form of an extended sentence
  • The offences were instances of “drunken opportunism” in respect of which there was the prospect of change over time, which required to be considered in contemplation of future risk.  Loss of inhibition through “binge drinking” was a factor in both rapes
  • The issue was what risk the appellant might present to the public after the potentially beneficial effect of the intervention of any determinate sentence had been taken into account: this had not adequately been reflected by either the RA or the sentencing judge who had given insufficient consideration to the effect of post-release supervision from an extended sentence
  • The effect of the Prisoners Control and Release (Scotland) Act 2015 was that the appellant would have had to complete the whole custodial term of any extended sentence, making such a sentence a more compelling alternative.  It had the effect of making an extended sentence more punitive and enabled an “escalation” in sentencing without the need for an OLR
  • It was not a “reasonable exercise of the sentencer’s discretion” to find the risk criteria established and to impose an OLR

[4]        The appellant had a significant history of offending.  He was convicted of attempted rape at the High Court of Justiciary in Perth in 2010, when a sentence of probation for 3 years was imposed.  He breached that order by committing offences against young girls, in respect of which he subsequently pled guilty to 2 charges of causing girls aged 13 to exhibit themselves intimately to him via a webcam.  He also pled guilty to a contravention of section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005 (“the 2005 Act”) by making arrangements for one of these girls to travel to meet him for the purpose of sexual activity.  An extended sentence of five years was imposed, of which the custodial part was two years:  it is this sentence which was in place when the current offences occurred.

[5]        The RAR placed the appellant in the “high risk” category, defined as meaning that the nature, seriousness, and pattern of his offending indicates an enduring propensity seriously to endanger the public at large.  Placing someone in this category means that the assessor is satisfied that he has “problematic, persistent, pervasive characteristics that are relevant to risk and not likely to change; or the potential for change with time and/or treatment is significantly limited.”

[6]        The RAR carried out in respect of the appellant considered that he fulfilled this definition.  The assessor considered that the appellant displayed a chronic pattern of sexual offending behaviour that began at sexual maturity around the age of fifteen.  In terms of the assessment which required to be made by a sentencing judge, the following paragraph may be viewed as of particular concern:

“He is socially skilled and is capable of manipulating young and vulnerable victims.  He is also able to manage how he presents on different forms of assessment and supervision to reduce the impact of supervision.  This is evidence in records of prior assessments, psychometric assessment completed for this assessment, and clinical impression at interview.  Although Mr R does not meet the diagnostic criteria for Psychopathic Personality Disorder here is evidence of patterns of behaviour commonly seen in psychopathic individuals in his engagement with supervision and offending…”


The assessor noted that:  “At times Mr R has not been honest with those supervising him and has withheld necessary information.”

[7]        A further matter of importance was that, as the assessor noted, the appellant was one of very few offenders who have had multiple reconvictions for sexual offences, having now been reconvicted twice, and that the reoffending has taken place when under supervision and within a short period of his release from custody.  Although he has received sexual offence focussed treatment, this had been unable to address or abate patterns of offending behaviour.  His attitude was such as to make effective treatment difficult if not impossible.  Although there were some protective factors, these have not prevented re-offending and should not be deemed likely to do so in the future.  Evidence of change should be “addressed with caution” since the appellant was able to present as having addressed key issues without making any change in his behaviour in key areas.  There were some protective factors, although these had been present also before prior offending.  These factors included a supportive family background.  However, the latter was also to a certain extent an inhibitory factor in relation to the possibility of future change, since the family support his minimisation of offending and dispute his guilt of all but two of the offences.

[8]        A defence report from Dr Darjee was in all material respects in agreement with these observations.  Risk factors of particular significance included:

  • Chronicity of sexual violence
  • Escalation in sexual violence
  • Psychological coercion in sexual violence
  • Problems with treatment
  • Problems with supervision

Risk factors partially present included:

  • Diversity of sexual violence
  • Physical coercion in sexual violence
  • Attitudes that support or condone sexual violence
  • Problems with substance abuse

[9]        The report stated that “it can only be concluded that he has an underlying propensity to commit sexual offences” and that “there is a sense that he has not been fully open about what has motivated his behaviour”.  Whilst some of his offending had been opportunistic, others had involved grooming.  The writer added:

“It is significant that he has committed two sets of offences now when he has been under criminal justice social work supervision and police monitoring, and his most recent offence has been committed despite having completed a Sex Offender Treatment Programme in prison.  These raise questions about his willingness and ability to fully engage with the services that have been offered to him.”


[10]      There is a clear assumption in the submissions made that the court requires to advance through a step-ladder of sentences from short extended sentence, to longer extended sentence to OLR before deciding that an OLR is necessary.  That is not the case, as is clear from the statutory provisions, and as was explained in Ferguson v HMA 2014 SCCR 244 at paras 103 and 104 (Lord Carloway) and 130 (Lord Drummond Young).  The availability of other sentences may be relevant in considering what risk may be presented by the offender on release from any punative determinate sentence, but there is not an incremental ladder of sentencing options which must be gone through.

[11]      As to the submissions made in relation to the 2005 Act, however an OLR may be considered as against an extended sentence, it is not the case that an OLR is meant to be more “punitive” than an extended sentence, and observations suggesting that the fact that an extended sentence is a more punitive sentence than formerly was the case are irrelevant: an OLR is about management of risk, not about punishment, and indeed the sentencing judge must remove from the punishment part those elements of a determinate sentence which would have been directed towards protection of the public.   

[12]      In the present case, the sentencing judge correctly noted that whether the risk criteria had been met remained a matter for her having regard to all the circumstances of the case, of which the RAR was only one, albeit an important one.  The sentencing judge fully recognised that the decision was not one to be dictated by the RAR, but to be determined by her on an assessment of all the circumstances of the case.  The weight to be attached to the RA classification was considered in Ferguson by the Lord Justice Clerk (Carloway):

“[105]  The utility of the risk assessor's categorisation of an offender's risk as high,  medium or low is as a tool for the sentencing judge. …There is no indication that only those categorised as a “high risk” should be made the subject of an OLR or that those thought by the risk assessor to be at “low risk” should not be made so subject.  This lack of instruction accords with the general principle that sentencing is for the judge, and not the risk assessor.  In that context, the judge may disagree with the assessor's categorisation, having regard to his/her own knowledge and experience or because he/she does not consider that the risk assessor's conclusion is supported by his analysis of the facts.


[106] Nevertheless, the structure of the legislation, and its reference to the need for a RAR to be compiled in accordance with RMA Guidelines, makes it clear that the judge ought to pay particular attention to the views of the expert risk assessor and hence to the categories of risk as defined by the RMA before reaching a decision.  The risk assessor's view has a statutory function.  If an offender is categorised as at high risk then he has, in terms of the definition, “an enduring propensity” seriously to endanger the public and the prospects of this changing are at least “significantly limited”.  This, if accepted by the judge, is a strong indicator pointing towards the necessity of an OLR.  It is not, however, binding upon the judge.”


[13]      It was submitted that there had been inadequate concentration on the risk which the appellant might present in the future but for the OLR.  The RAR, the defence report, had looked only at the risk posed were he in general to be at liberty.

[14]      This again betrays an incomplete understanding of the process.  The question of whether the risk criteria are met is entirely one for the judge.  It is the judge not the assessor who must contemplate whether there is likely to be serious endangerment to the public at the point in the future when, but for the imposition of an OLR, the offender might be predicted to be at liberty.  The assessor is not in a position to predict when that point might be: it is a sentencing function to be carried out by the judge.  As Lord Carloway explained in Ferguson, para 101:

“This approach does not require a precise calculation of when the offender is likely to have been released (but for an OLR) or an accurate prediction of his state at that time.  Rather, it envisages the court assessing the existing risk posed at the time of sentencing and an assessment of whether any custodial or post-release regime, short of an OLR, will have any material impact on that risk.  If the judge, in light of, especially but not exclusively, the RAR, considers that no material reduction of the risk will occur, he/she would be entitled to find that any likelihood of serious endangerment at the time of sentencing will be, for practical purposes, that which will exist on release from custody.”


[15]      To enable the judge to carry out this exercise, the RAR must identify the risk presented by the appellant, not merely at present but in the future.  In respect of the latter, the assessor must address the likely risk on release from a custodial prison sentence in general, recognising the interventions that might be available in the course of, and subsequent to, such a sentence; it remains, however, for the sentencing judge to decide whether the risk criteria have been met, and in particular, whether, but for the imposition of an OLR, the appellant would seriously endanger the public when at liberty.   

[16]      In this case the RAR did so (as did the defence report).  In reaching his conclusion on risk, the assessor stated that the appellant:

“... has demonstrated limited amenability to treatment, unusual persistence in offending behaviour, and offending that will cause significant trauma to victims…….as he is a young man the risk is likely to be present for the foreseeable future.”


The defence report stated that:

“One would have to consider it plausible and likely that he would commit such offences in the future whether or not he was under supervision in the community.”


[17]      The discussion of risk generally in both reports requires to be placed in the context of an assessment of “high risk” which carries the definition to which we have previously adverted.  In making such a classification it is implicit that the assessor has considered the enduring nature of the appellant’s propensity; and that the relevant characteristics are problematic, persistent and pervasive with limited potential for change.  It is clear that both reports looked at current risk, and the risk which might be presented in the future.

[18]      It is clear that the sentencing judge gave due, but not undue, weight to the terms of the RAR which she had before her.  She carefully considered all the circumstances of the case including the defence report, the pattern of offending and the appellant’s previous convictions.  She addressed the matter in the context of what the likely position would be but for the imposition of an OLR.  She noted that even after a lengthy custodial sentence the appellant would, on release, still be a relatively young man.  She was rightly concerned by the facts that the present offences were committed whilst the appellant was on licence from an earlier extended sentence, during which he had completed a sex offender treatment programme, and that he seems to have been able to deceive the professionals working with him.  Her assessment was made in the context of the definition of “high risk” referred to above, and of which she would be aware.   

[19]      On the material available, the sentencing judge was entitled to consider that the appellant presented with a pattern of sexual offending over a period from 2003 to 2014; that he had a propensity to commit offences of this kind; that the propensity was an enduring one; that the appellant was capable of producing an impression in professionals working with him that he was engaging effectively with work intended to reduce the risk of offending, when he was in fact not deriving a benefit from that work; that there were serious issues relating to his willingness to, or capacity for, change; and that the risk criteria were met.  That being so, she had no option but to impose an OLR, and the appeal will be refused.

[20]      There is, however, one further matter we should mention, in the context of OLRs generally.  The imposition of an OLR anticipates that as far as can presently be predicted, the offender requires lifelong monitoring and supervision.  Nevertheless, some individuals upon whom such a sentence is passed, may, with long-term, intensive work, be able to change.  The prediction of future risk behind the imposition of an OLR is based on numerous factors, including the RAR.  The RAR, and the classification of risk presented by the offender remain central to the sentencing decision.  An OLR has effect for the rest of the offender’s natural life.  An offender may be released from custody where the parole board is satisfied that any risk which he presents may be managed in the community.  However, there is no mechanism for review of such a sentence, for example, where the evaluation of future risk made at the time of sentence, sufficient to justify a finding that the criteria have been met, turns out to have been unjustified, or where the consequences or intervention and maturity equally mean that the risk criteria are no longer met.    The absence of a means of review by a court for a sentence largely based on the concept of risk demonstrates the extraordinary nature of the sentence.  Taken with the possibility that a sentence of this kind may be passed on someone classified by the assessor in the medium, or even exceptionally in low, risk category, also emphasises the need for the trial judge to be conscious of the demanding nature of the risk criteria (Ferguson, para 129, Lord Drummond Young) and to keep in mind the possibility of reduction of risk from maturity and rehabilitation in the

normal course, especially in relation to a young offender (Ferguson, para 107, Lord Justice Clerk; para 137 Lord Clarke).  As the assessor in the present case observed in a short supplementary report, risk assessments are not definitively prognostic of outcomes.  Furthermore, it is not the case that an OLR will only be passed on those who have been identified as presenting a “high risk”.  The circumstances of particular offenders or offences may be such that the risk criteria are met where there has been an assessment of medium risk (see, for example, several appellants in Ferguson).  That is particularly the case where relevant characteristics are seen to be pervasive and persisting in a mature offender.  The appellant in the present case is 28, an age when he might be expected to have reached mature adulthood.  Nevertheless, even in the case of the appellant (who is not a particularly young man), there may be, as noted in the supplementary report, changes to his psychological functioning during his sentence that will further affect the prospects of rehabilitation.  The assessor stated that “This will warrant further assessment as he develops during his sentence.”  This was a factor which was emphasised in Ferguson by Lord Drummond Young:

“We were informed that at the date of the hearing of these appeals no offender who had been made subject to an OLR had yet been released.  At the present stage this is perhaps not surprising, as such orders are imposed with reference to the probability of offending at a future date when the offender is released from prison.  OLRs have only been competent since 2006, and if the risk criteria were indeed met when the sentence was imposed it is quite likely that the risk to the public would still exist in every case after seven or eight years.  Nevertheless, the punishment parts have expired in a substantial number of cases.  In these circumstances it is perhaps worth emphasising that prisoners subject to OLRs must have their cases reviewed regularly, to ensure that continued custody is necessary to meet the objectives of the OLR.  That is clearly contemplated by the terms and structure of the governing legislation, and it is in my opinion essential to ensure that the OLR does not become an unjustified form of preventive detention.”


[20]      The same point had been made earlier on Johnstone v HMA (para 23) but in our opinion it bears repeating.