Mandatory OLR Where s 210E Risk Criteria Are Met: “Medium” RMA Rating Does Not Preclude Lifelong Restriction

Case: Appeal Against Sentence by Otu Nyiam also known as Raymond Nyiam against His Majesty's Advocate
Citation: [2026] HCJAC 5 (Scottish High Court of Justiciary, Appeal Court)
Date: 3 February 2026

1. Introduction

This appeal concerned whether the High Court was entitled to impose an Order for Lifelong Restriction (OLR) on Otu Nyiam (also known as Raymond Nyiam) after his conviction (15 April 2025) of two rapes committed on the same date in 2019 against two women who were asleep/unconscious and affected by alcohol. The respondent was His Majesty’s Advocate.

The appellant’s central contention was that the statutory “risk criteria” for an OLR were not met and that, in light of the Risk Assessment Report (RAR) categorising him as “Medium risk”, an extended sentence should have been regarded as sufficient. The case therefore raised a recurring sentencing problem in Scottish criminal practice: how courts should use expert risk assessment, and how “medium” risk relates to the statutory threshold for lifelong restriction.

The appeal was heard by the Appeal Court (Lord Justice Clerk; Lord Matthews; Lord Armstrong), with the opinion delivered by LORD BECKETT, the LORD JUSTICE CLERK.

2. Summary of the Judgment

The Appeal Court refused the appeal and upheld the OLR. It held that:

  • The sentencing judge correctly applied s 210E (risk criteria) and s 210F (mandatory consequence) of the Criminal Procedure (Scotland) Act 1995.
  • Although the RAR concluded “Medium risk”, the judge was entitled to find—on the balance of probabilities— that the statutory risk criteria were met, having regard to the full record and pattern of sexual offending, including offending while on bail.
  • If the s 210E risk criteria are met, the court is bound to impose an OLR under s 210F; the judge is not required to treat an extended sentence as a preliminary alternative that must be excluded first.
  • The judge was entitled to treat parts of the assessor’s conclusion as applying an erroneously high test (“high likelihood” rather than statutory “likelihood”), and to discount optimistic or speculative assumptions about change where the offender lacked insight and had demonstrated non-compliance (notably by offending on bail).

The sentence therefore involved no miscarriage of justice and was not excessive.

3. Analysis

3.1 Precedents Cited

Ferguson v HM Advocate [2014] HCJAC 19, 2014 SCCR 244

Ferguson was the principal authority and provided the Appeal Court’s framework for three key propositions, all of which are reaffirmed and sharpened in [2026] HCJAC 5:

  1. Mandatory consequence once criteria are met: The Appeal Court repeated that, where the judge concludes the s 210E risk criteria are met on the balance of probabilities, s 210F means the judge must make an OLR (the court cites “Ferguson” for this proposition at para [37]).
  2. Extended sentence is not a prerequisite “alternative disposal” test: The appellant argued, relying on Ferguson, that the court should consider whether something “short of an OLR” would address risk. The Appeal Court rejected any reading of Ferguson that imposes a formal requirement to “consider and discount” an extended sentence before making an OLR (para [37]). The proper role of extended sentences is more contextual: they may “frequently be in the mind” of the judge, but do not operate as an intermediate statutory hurdle.
  3. Judge’s ultimate responsibility for risk decision: Echoing Ferguson, the court reiterated that the judge is not bound by the risk assessor’s RMA category; the RAR is influential, but the legal judgment on the statutory criteria is the court’s (para [38]).

The appellant sought to analogise his case to the “second appellant (Cameron)” scenario discussed in Ferguson, where an OLR had been quashed. The Appeal Court rejected the comparison (paras [41]–[42]), emphasising that the Ferguson/Cameron case involved a different personal and offending context (single violent incident with alcohol context, stable family and employment), whereas Nyiam involved repeated sexual offending against intoxicated/sleeping women, personality disorder traits, and offending on bail.

3.2 Legal Reasoning

(a) Statutory structure: s 210E (threshold) and s 210F (mandatory disposal)

The court’s reasoning is anchored in the statutory sequence:

  • s 210E defines the risk criteria: whether the nature/circumstances of the offence, alone or as part of a pattern, demonstrate a likelihood that, if at liberty, the offender will seriously endanger the public’s lives or physical/psychological well-being.
  • s 210F then requires that if, having regard to the RAR and other information, the court is satisfied on a balance of probabilities that the risk criteria are met, it shall make an OLR (in non-compulsion-order cases).

The Appeal Court treated this as leaving no discretion once the risk criteria are found to be met: the OLR is not an “extra” punitive choice but the legally mandated form of sentence to manage ongoing risk.

(b) Relationship between RMA “Medium risk” and the legal test

A significant contribution of the judgment lies in its careful juxtaposition of: (i) the RMA risk ratings (high/medium/low) and (ii) the s 210E statutory criteria.

The court quoted (at para [39]) the then-current RMA definitions, highlighting an important commonality: both High and Medium begin with the proposition that the “nature, seriousness and pattern” indicate a propensity to seriously endanger the public. The real difference is that “medium” allows that the risk may be amenable/manageable and that measures short of lifelong restriction may suffice.

The Appeal Court’s point is doctrinally important: a “medium” RMA rating is not inconsistent with the statutory risk criteria. The legal question is not whether the offender is “high risk” in RMA terms, but whether the statutory “likelihood” of serious endangerment is established on the balance of probabilities (paras [38]–[40]).

(c) Evaluating “likelihood”: pattern of behaviour, bail offending, and realism about change

The court upheld the sentencing judge’s scepticism about the assessor’s more hopeful narrative of change. The reasoning turned on the following evaluative steps:

  • Pattern and repetition: four rape convictions (two in 2020; two in 2025 for 2019 conduct) against broadly similar fact patterns—complainers intoxicated/asleep, waking to penetration—supported an inference of a persistent modus operandi and sexual predation (paras [42], [44]).
  • Offending on bail: committing the 2019 rapes while on bail for earlier rape allegations was treated as a powerful indicator of future non-compliance with restrictive conditions (paras [44]–[45]).
  • Personality traits relevant to enduring risk: antisocial personality disorder diagnosis, near-threshold psychopathy traits (PCL-R 23), and narcissistic traits were considered highly relevant to the likelihood of serious future endangerment (paras [42]–[43]).
  • Prison conduct and “protective factors”: the court endorsed the view that “no sexual offending in prison” carried limited weight because the prison environment removes access to the specific victim profile (intoxicated/sleeping women) (para [44]). “Protective factors” were also treated cautiously because many would have been present during the offending period (para [25]).
  • Correct legal threshold: the assessor’s use of “high likelihood” was identified as applying a higher test than the statute, which requires “likelihood” (para [30], and accepted in submissions at para [35]). The judge was entitled to adjust for that misstatement when reaching the legal conclusion.

(d) “Looking ahead” to release was not ignored

The appellant argued the judge failed to evaluate risk at the point of future release (a Ferguson theme). The Appeal Court rejected this, noting that the judge had written submissions on the “look ahead” requirement and expressly considered future supervision and the unreliability of the appellant’s claimed motivation and compliance (paras [31], [45]).

3.3 Impact

The decision is likely to be influential in Scottish OLR appeals for three reasons:

  1. Clarifies the non-determinative role of “Medium risk”: The judgment makes it harder to argue that a “medium” RMA category, without more, implies that s 210E is not met. Courts may accept “medium” while still concluding that the statutory “likelihood” threshold is satisfied.
  2. Reinforces mandatory nature of OLR under s 210F: Once a judge finds the risk criteria met, the OLR is not a matter of sentencing preference. This reduces the practical force of submissions framed as “OLR is extraordinary therefore only if no other disposal will do”, except insofar as they bear on whether the risk criteria are met in the first place.
  3. Signals robust judicial scrutiny of optimistic RAR conclusions: The court endorsed a sentencing judge’s sceptical approach to speculative “amenability to change”, especially where there is demonstrable non-compliance (bail offending) and entrenched personality traits. Risk assessors’ language and alignment with statutory terms (“likelihood”) may receive increased attention in future cases.

Practically, prosecutors may view [2026] HCJAC 5 as supporting OLR motions even where the RAR does not label the risk “high”, provided the factual pattern demonstrates repeated serious sexual endangerment and poor compliance history. Defence teams, conversely, may need to focus less on the headline “medium” rating and more on undermining the legal inference of “likelihood” (for example, by evidencing verified treatment engagement, credible insight, and sustained compliant behaviour in settings that mirror community conditions).

4. Complex Concepts Simplified

Order for Lifelong Restriction (OLR)
A sentence designed to manage offenders who present an ongoing serious risk. It combines a custodial element (with a punishment part) and then indefinite post-release controls. Release and recall are tightly risk-managed.
Risk Assessment Order (RAO) and Risk Assessment Report (RAR)
An RAO allows the court to obtain a specialist RAR prepared by an accredited assessor under the Risk Management Authority framework. The RAR informs but does not decide the legal question.
Risk Management Authority (RMA) “High/Medium/Low” ratings
Professional categories used to describe the nature of risk and its manageability. They are not themselves the statutory test. A person can be “medium” yet still meet the s 210E criteria.
“Risk criteria” under s 210E
The statutory threshold: whether the offence(s), alone or as part of a pattern, show a likelihood of serious endangerment to the public if the person is at liberty.
“Balance of probabilities”
The civil standard of proof used for the risk decision: more likely than not.
Extended sentence
A sentence with a custodial term plus an extension period of licence supervision after release. It is a tool for risk management, but it is not a statutory “step” that must be tried before an OLR if s 210E is met.
“Looking ahead” to release
The principle that risk must be assessed in a forward-looking way—what the risk will be when the offender is back in the community—not only at the moment of sentencing.

5. Conclusion

[2026] HCJAC 5 consolidates a clear rule: where the sentencing judge is satisfied on the balance of probabilities that the s 210E risk criteria are met, s 210F makes an OLR mandatory. The case also confirms that a “Medium” risk rating in an RAR does not prevent a court from finding the statutory “likelihood” of serious endangerment, particularly where there is a repeated pattern of grave sexual offending, offending on bail, and entrenched personality traits undermining the credibility of predicted change.

More broadly, the judgment demonstrates the Appeal Court’s willingness to uphold rigorous judicial scrutiny of risk assessment evidence and to insist that expert conclusions are aligned with the statutory language—reinforcing that risk assessment is an aid to, not a substitute for, the court’s legal judgment.