Medium Risk Can Still Require an OLR Where Risk Criteria Are Met and Long-Term Supervision Is Unavailable

1. Introduction

In Appeal against Sentence by Curtis Lee Ross against His Majesty's Advocate ([2026] HCJAC 29), the Appeal Court of the High Court of Justiciary (opinion delivered by the Lord Justice Clerk (Lord Beckett), with Lord Matthews and Lord Clark) refused an appeal against the imposition of an Order for Lifelong Restriction (OLR) with a 12-month punishment part.

The appellant had pled guilty to a single charge under section 38(1) of the Criminal Justice and Licensing (Scotland) Act 2010 involving threatening or abusive behaviour likely to cause fear or alarm, aggravated by social-media messaging, the creation of an explosion using gas canisters, and posting a recording online. A second charge under section 57(1) of the Terrorism Act 2000 was not proceeded with after the Crown accepted a not guilty plea.

The appeal raised a recurring sentencing tension in Scots risk-based disposals: where a professional risk assessor places an individual at a “medium” risk level (under Risk Management Authority (RMA) standards), can the sentencing judge nevertheless find that the statutory risk criteria for an OLR are met— especially when the sentencing toolkit offers no competent route to long-term post-release supervision?

2. Summary of the Judgment

  • The court confirmed that an OLR was competent even though the conviction was for a section 38 offence with a 5-year maximum, provided the punishment part did not exceed that maximum.
  • The court held that, although the risk assessor concluded the appellant most closely fitted the RMA’s “medium risk” definition, that did not prevent the sentencing judge from finding, on the balance of probabilities, that the statutory risk criteria in section 210E of the Criminal Procedure (Scotland) Act 1995 were met.
  • The court emphasised that an extended sentence was not competent because the conviction was not for a sexual offence, violent offence, or terrorism offence as defined in section 210A(10). The only relevant alternative—a supervised release order—could not exceed 12 months.
  • Given the appellant’s history, ideation, conduct, materials, communications, and the risk formulation in the report, the judge was entitled (and correct) to conclude that if at liberty the appellant was likely to seriously endanger the public’s life or physical/psychological wellbeing. The appeal was refused.

3. Analysis

3.1 Statutory Framework: How a Section 38 Conviction Can Lead to an OLR

The legal gateway is section 210B (risk assessment orders) and the ultimate disposal power in sections 210E (risk criteria) and 210F (mandatory imposition where criteria met).

Although section 210B(1)(a) covers specified categories (sexual, violent, “endangers life”), this case proceeded under section 210B(1)(b): where the nature/circumstances suggest a propensity to commit an offence of those kinds. The court noted that the appellant correctly did not challenge competence: the sentencing judge had determined that subsection (b) applied.

The operative test in section 210E is whether the offence (alone or as part of a pattern) demonstrates a likelihood that the person, if at liberty, will seriously endanger the public at large. That is a public protection threshold, not a tariff-based one, and it encompasses psychological wellbeing as well as physical harm and loss of life.

3.2 The “Medium Risk” Label: Persuasive, Not Determinative

The risk assessment report (RAR) was detailed and multi-instrumental (including HCR-20v3, SARAv3, and TRAP-18). The assessor concluded that the appellant most closely fitted the RMA definition of MEDIUM RISK, identifying both destabilising factors (violent ideation, ideologically-framed grievance, virtual community dependence, fixation/leakage indicators) and protective/management factors (external controls, supervision, treatment compliance).

The Appeal Court’s key clarification is functional: “medium risk” is compatible with meeting the section 210E risk criteria. A medium classification does not create a legal presumption against OLR; rather, it leaves the court with an evaluative judgment whether the statutory threshold—likelihood of serious endangerment if at liberty—is met on the evidence.

The court also underscored an important practical point: the assessor’s medium conclusion was influenced by the assumed availability of “a lengthy extended sentence” to secure robust community supervision—yet that option was not competent on the conviction before the court. The sentencing judge was therefore faced with a stark risk-management mismatch: a need for long-term controls, but no lawful mechanism to deliver them via an extended sentence.

3.3 Alternatives to OLR and the Significance of “Competence”

The sentencing judge’s reasoning (upheld on appeal) turned partly on the limited lawful alternatives:

  • Extended sentence (section 210A): not competent because the offence was not within the statutory definitions in section 210A(10) (not a sexual offence, violent offence, or terrorism offence as defined).
  • Supervised release order (section 209): competent, but the supervision period is capped at 12 months—found inadequate to manage the long-term risk picture identified by both social work and the RAR.
  • Community Payback Order: regarded as insufficient for public protection given escalation concerns.

This does not mean OLR is a “default” whenever extended sentencing is unavailable. But the judgment makes clear that where the court is satisfied the section 210E risk criteria are met, Parliament has directed (via section 210F) that the court shall impose an OLR (or a compulsion order where applicable). Thus, competence constraints on alternative disposals may sharpen—rather than replace—the core inquiry: is the statutory risk threshold met?

3.4 The Court’s Risk Evaluation on the Facts

The Appeal Court treated the case as “unusual and difficult” because the index conviction did not itself cause injury or property damage, yet the broader evidential matrix was highly concerning. The court relied on:

  • Escalating pattern and persistence: violent ideation and behaviour from childhood, knife-related offending, domestic abuse, and repeated section 38 convictions.
  • Interest in terrorism and identification with attackers: references to the Unabomber, Timothy McVeigh, ideologically framed grievances, and communications suggestive of “leakage”.
  • Preparatory indicia: “Project Payback” sketch with components labelled (shrapnel, nails/screws, gas canisters, fuse/detonators, petrol), and possession of assorted items consistent with improvised device assembly.
  • Communications raising intent concerns: messages about revenge/violence and “instructions” for making a pipe bomb; statements minimising the explosion as satire while simultaneously boasting about greater capability.
  • Institutional behaviour and prison material: letters expressing urgency about action against industrialisation, and materials relating to terrorists, suggesting limited disengagement.

The court accepted that some behaviour might be bravado or shock-seeking, but held that, when taken together, the record justified the conclusion that the appellant was likely, if at liberty, to seriously endanger the public—potentially through reckless public disorder involving fire/explosions, and possibly through more direct violence if destabilised.

3.5 Sentencing Young People Guideline: Relevance but Not a Bar to OLR

The appellant relied on the Sentencing Council for Scotland’s “Sentencing young people” guideline. The Appeal Court’s response was pragmatic: the appellant was not “particularly young” in guideline terms, and the assessor did not view him as notably immature. The guideline did not displace the statutory OLR scheme, which is triggered by risk criteria rather than age-based culpability alone.

3.6 Precedents Cited and Their Influence

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

Ferguson was central. The court used it for two propositions:

  • There is no formal requirement that a sentencing judge must first consider an extended sentence before imposing an OLR (where OLR is otherwise competent).
  • Where the RAR assesses medium risk, it is for the judge to decide whether the section 210E risk criteria are met; the judge is not bound by the assessor’s label (though the assessment must be treated with care).

In short, Ferguson underwrote the appellate court’s refusal to treat “medium risk” as a ceiling, and it framed the appellate test: whether the judge was entitled to be satisfied on the balance of probabilities.

3.6.2 Nyiam v HM Advocate [2026] HCJAC 5, 2026 SCCR 144

Nyiam was cited alongside Ferguson to reinforce the point that the court is not obliged, as a matter of legal precondition, to explore extended sentencing before OLR. This matters here because the appeal tried to reposition OLR as disproportionate given the index offence’s maximum penalty; the court responded that the statutory OLR scheme is not structured as a last resort after extended sentencing analysis—particularly where extended sentencing is not competent.

3.6.3 Moreno v HM Advocate [2024] HCJAC 27; NS v HM Advocate [2025] HCJAC 24, 2025 JC 342; Hamilton v HM Advocate [2026] HCJAC 10, 2026 SLT 549

The appellant invoked these cases as comparators where OLR appeals by younger offenders failed. The court gave them limited weight, emphasising that OLR appeals (absent competence issues) are highly fact-sensitive, and that the sentencing judge’s statutory task is to assess the risk criteria on the evidence in the case at hand. The court also stated it was familiar with those decisions and they did not alter the conclusion that the judge was entitled to find the risk criteria met.

3.7 Impact: Likely Consequences for Future Cases

This decision is likely to be cited in three recurring situations:

  1. Non-“scheduled” convictions with terrorism-adjacent facts: it illustrates how section 210B(1)(b) (propensity) can make an OLR competent even where the conviction is not for a sexual/violent/terrorism offence.
  2. “Medium risk” RARs: it confirms that a medium RMA categorisation does not preclude an OLR where the section 210E test is met. The legal question remains serious endangerment likelihood, not the assessor’s category label.
  3. Gaps in sentencing options: where extended sentencing is incompetent and only short supervision is available, courts may more readily conclude that OLR is the only disposal capable of delivering the level/duration of control required—provided the risk criteria are independently satisfied.

4. Complex Concepts Simplified

Order for Lifelong Restriction (OLR)
A sentence designed for public protection, involving lifelong licence conditions and risk management. Release is controlled and can be followed by recall if risk escalates.
Punishment part
The minimum period to be served in custody to satisfy retribution/deterrence before release can be considered. Here, it was 12 months, constrained by the section 38 maximum.
Risk assessment order / risk assessment report (RAR)
A procedural step requiring professional risk assessment to inform whether statutory OLR risk criteria are met. The report informs but does not bind the court.
Section 210E risk criteria (“seriously endanger”)
A statutory test focusing on likelihood of serious harm to the public (including psychological harm) if the person is at liberty, assessed from the offence and any pattern of behaviour.
Extended sentence vs supervised release order
An extended sentence can provide longer post-release supervision but is only available for certain offence categories (as defined). A supervised release order is available more generally but has a strict maximum supervision period (here, 12 months).

5. Conclusion

[2026] HCJAC 29 confirms that, in Scots sentencing law, an assessor’s conclusion of medium risk does not prevent an OLR where the court is satisfied—on the balance of probabilities—that the section 210E risk criteria are met. The case also highlights the practical importance of competence limits on alternative disposals: where extended sentencing is unavailable and short supervision is inadequate, the court may be driven to the OLR framework if (and only if) the statutory public-protection threshold is crossed. The Appeal Court ultimately treated the appellant’s long history of violent ideation/behaviour, coupled with ideologically framed communications and explosion-related conduct, as sufficient to justify the sentencing judge’s conclusion that the public would be seriously endangered if he were at liberty.