OLR/RAO in Crown Sentence Appeals: The risk criteria must be evidenced by (and linked to) the qualifying offence, not by psychological harm hypothesised from non‑qualifying dishonesty
1) Introduction
This was a Crown appeal against a custodial sentence of 9 years imposed on Robert Markward following his conviction of ten charges: nine dishonesty offences (fraud/theft) largely targeting elderly residents in sheltered or retirement accommodation, and one charge of assault to injury (charge 9). The Crown’s sole ground was undue leniency, contending the sentencing judge ought to have triggered the statutory lifelong-risk regime by imposing an order for lifelong restriction (“OLR”) on the assault (charge 9), or (at least) by making a risk assessment order (“RAO”).
The central issues were:
- whether the 9-year sentence was unduly lenient on the
HM Advocate v Bell 1995 SCCR 244test; and - whether the statutory threshold for RAO/OLR could be reached where the qualifying offence was a relatively minor assault, but the broader case involved repeated dishonesty said to create psychological harm and a risk of escalation.
2) Summary of the Judgment
The Appeal Court refused the Crown appeal. It held:
- No undue leniency: the sentencing judge carefully weighed the evidence and materials, and the 9-year sentence was within the reasonable range for this pattern of offending.
- No proper RAO/OLR basis in any event: charge 9 was the only qualifying offence for RAO/OLR purposes, and its nature/circumstances—alone or as part of any “pattern of behaviour”—did not demonstrate that the respondent, if at liberty, was likely to seriously endanger the lives or physical/psychological wellbeing of the public at large.
- Crucially: the court rejected the Crown’s attempt to meet the risk criteria by combining the qualifying assault with anticipated serious psychological harm arising from future non-qualifying dishonesty. The statutory wording requires a link between the qualifying offence and the future serious endangerment.
3) Analysis
3.1 Precedents Cited
HM Advocate v Bell 1995 SCCR 244
Role in this case: Bell supplied the controlling test for Crown appeals on undue leniency: a sentence is not altered merely because the appeal court would have imposed more; it must fall outside the range reasonably open to the sentencing judge, with weight given to the trial judge’s advantage of seeing and hearing the evidence.
Application: The court applied Bell to hold that the sentencing judge’s refusal to pursue RAO/OLR, and the 9-year term overall, were reasoned decisions within the permissible range—therefore not “unduly lenient”.
HM Advocate v LB [2022] HCJAC 48, 2023 JC 97
Role in this case: LB was invoked to explain the procedural route by which RAO/OLR questions can arise on a Crown sentence appeal even though
s 210B(6) bars appeal against a refusal to make an RAO. LB envisaged that, if the appeal court is persuaded the sentence is unduly lenient and decides to impose a different sentence, it may (and if “may be met” is satisfied, must) make an RAO.
Application: The court accepted that this mechanism exists in principle, but it did not assist the Crown because the first gateway—undue leniency—was not met, and in any event the risk criteria did not “may be met” on the facts.
Mitchell v HM Advocate [2024] HCJAC 8, 2024 JC 284
Role in this case: Mitchell illustrated the LB mechanism in operation: once the appeal court decided to impose a different sentence and considered the risk criteria might be met, it made an RAO and later imposed an OLR.
Application: Used to show the court’s power in an appeal context, but distinguished on the facts because Markward did not meet the relevant risk linkage/threshold.
Kinloch v HM Advocate [2015] HCJAC 102, 2016 JC 78
Role in this case: Kinloch was the key authority reinforcing that the OLR/RAO statutory scheme demands not only serious risk but a link between the qualifying offence and the risk criteria.
Application: The court treated Kinloch as strong support for rejecting the Crown’s approach. As in Kinloch, the court considered that general recidivism (here, persistent dishonesty) could not be repackaged as meeting the statutory risk criteria where the qualifying offence (a comparatively minor assault) did not itself, or as part of a relevant pattern, demonstrate likely serious endangerment to the public at large.
Johnstone v HM Advocate [2011] HCJAC 66A, 2012 JC 79
Role in this case: Cited by the Crown to argue that future offending need not be “violent” for risk criteria to be met.
How it influenced the decision: The court found Johnstone fact-specific and not supportive here. In Johnstone, the qualifying conduct and surrounding facts obviously evidenced public-danger risk and the necessary link between offence and risk. That link was absent in Markward.
McFadyen v HM Advocate [2010] HCJAC 120, 2011 SCL 337
Role in this case: Also relied upon by the Crown for the proposition that non-violent future harm can satisfy the risk criteria.
How it influenced the decision: The court rejected its relevance: McFadyen involved significantly more alarming facts, including prior extreme violence and apparent sexual motivation, providing an evident qualifying basis and linkage. The court deduced that McFadyen likely qualified via sexual offence provisions or propensity under the statutory scheme—unlike the present case.
Ferguson v HM Advocate [2014] HCJAC 19, 2014 SLT 431
Role in this case: Cited by the Crown to suggest that even a “medium risk” persistent offender might satisfy the risk criteria.
How it influenced the decision: It did not shift the outcome because the court’s focus was on the statutory requirement that the risk must be demonstrated by the nature/circumstances of the qualifying offence (alone or in a relevant pattern), not by general persistence in non-qualifying offending.
3.2 Legal Reasoning
The decision turned on three interlocking strands of reasoning.
(A) The “undue leniency” gateway is stringent
Applying HM Advocate v Bell 1995 SCCR 244, the court emphasised deference to a trial judge who heard the evidence and assessed seriousness and risk in context.
The judge had expressly considered RAO/OLR and rejected it for reasons tied to the limited violence history and the comparatively minor nature of the assault to injury.
The Appeal Court held that this was a rational, well-reasoned sentencing evaluation; the 9-year term was “substantial” and not outside the reasonable range.
(B) Statutory structure: RAO/OLR hinges on a qualifying offence and the risk criteria
The court set out the key statutory provisions:
s 210B(Risk assessment order): applies where the offence is (among others) a “violent offence” or where the offence shows propensity to such offences; the court must make an RAO if it considers the risk criteria “may be met”.s 210E(Risk criteria): the nature/circumstances of the offence—alone or as part of a pattern—must demonstrate a likelihood of seriously endangering the public at large’s lives or physical/psychological wellbeing.s 210B(6): no appeal lies against making or refusing an RAO.
(C) The “link” requirement: the qualifying offence must ground the future serious-endangerment risk
The court’s most important clarification is its insistence that s 210E requires a linkage between:
(i) the qualifying offence’s nature/circumstances (or a relevant pattern including it), and
(ii) the feared future serious endangerment.
On the facts, charge 9 was “comparatively minor”, involved bruising/torn clothing, and occurred when staff connected to the premises intervened as the respondent attempted to leave. The court was not persuaded that this assault—read with a single summary assault conviction in 1987, old section 41 Police (Scotland) Act 1967 convictions, and 1996 hospital incidents—established a qualifying-pattern demonstrating likely serious endangerment to the public at large.
Critically, the Crown sought to bridge the gap by pointing to serious psychological harm said to arise from “home-invasion” dishonesty against elderly victims (including views in the JSWR and Professor Cooke’s partial assessment).
The court rejected that route: even if future dishonesty could cause serious psychological consequences, the court was “not persuaded” it could use harm from
non-qualifying offending to satisfy the risk criteria where the qualifying offence was the minor assault. The emphasised wording in s 210E was read as demanding the link.
3.3 Impact
- Constrains RAO/OLR use in “dishonesty + minor violence” cases: Where a case is dominated by dishonesty offending, a relatively minor qualifying assault will not readily justify RAO/OLR unless it, or a relevant pattern including it, demonstrates likely serious endangerment to the public at large.
- Reinforces Kinloch’s “link” principle beyond prison cases: The Crown argued Kinloch had no wider significance; the court effectively confirmed it does, by applying its linkage analysis in a community-offending context.
-
Defines the limits of “psychological harm” as a risk-criteria driver: Psychological harm can be relevant, but the court cautioned against using it as a free-standing lever where it is not anchored in the qualifying offence’s nature/circumstances (or a relevant pattern) required by
s 210E. -
Clarifies appellate pathway but keeps it exceptional: Following
HM Advocate v LB [2022] HCJAC 48, 2023 JC 97andMitchell v HM Advocate [2024] HCJAC 8, 2024 JC 284, the court confirmed that RAO can be made on a Crown appeal only if the appeal court is already entitled to intervene on sentence (typically by finding undue leniency and deciding to impose a different sentence), and only if the “may be met” threshold is satisfied.
4) Complex Concepts Simplified
-
Unduly lenient sentence: Not “a bit low”; it must be outside the range any reasonable sentencing judge could impose on the facts (
HM Advocate v Bell 1995 SCCR 244). -
Risk Assessment Order (RAO): A court order requiring a specialist risk assessment to inform whether an OLR should be imposed. Under
s 210B(2), if the court considers the risk criteria “may be met”, it must make an RAO (subject to statutory exceptions). - Order for Lifelong Restriction (OLR): An indeterminate sentence: custody continues until risk can be managed in the community; thereafter release is tightly controlled and can be revoked.
-
Qualifying offence: Only certain offences (e.g., “violent offence”) trigger the RAO/OLR statutory pathway (
s 210B(1)). If only one charge qualifies (here, the assault), the risk analysis must be rooted in that offence (alone or as part of a relevant pattern). -
Risk criteria / “serious endangerment”: The statute requires a likelihood of seriously endangering the public at large’s lives, or physical or psychological wellbeing (
s 210E). This is higher than “likely to reoffend”. - The “link” requirement: The feared future serious endangerment must be demonstrated by the nature/circumstances of the qualifying offence (or a pattern including it), not merely by general criminality or by hypothesised harms from other, non-qualifying offences.
5) Conclusion
[2026] HCJAC 2 reaffirms the strictness of Crown undue-leniency appeals and, more importantly, tightens the analytical discipline required for RAO/OLR: the court must be able to identify a statutory-quality link between the qualifying offence (here, a minor assault) and the likelihood of future serious endangerment to the public at large. Persistent dishonesty—even targeting vulnerable victims and capable of causing psychological upset—cannot, without that linkage, be used to justify the lifelong restriction regime.
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