OLR Competence for Pre‑2006 Offending: “Case Commenced” Means Procurator Fiscal Receipt of a Prosecution Report, and Earlier Conduct May Still Prove a “Pattern of Behaviour”

1. Introduction

In Appeal Against Sentence by James Donaldson or Murray against His Majesty's Advocate ([2026] HCJAC 36, Appeal Court, High Court of Justiciary, 11 August 2026), the appellant challenged the competency and appropriateness of an order for lifelong restriction (“OLR”) imposed cumulatively across multiple charges, including historic sexual offences committed between 1991 and 1995 (charges 1, 2 and 6) and a later sexual assault in 2018 (charge 8).

The appeal ultimately turned on: (i) whether it was competent to impose an OLR in respect of pre‑20 June 2006 offending (given the commencement provisions for OLRs), and (ii) whether, in any event, the risk criteria were met so as to mandate an OLR.

The appellant also argued that the long interval between historic and later conduct undermined any conclusion of a continuing pattern of serious endangerment to the public at large.

2. Summary of the Judgment

  • The court refused the competency challenge: it was not prepared to infer that a police report of the historic sexual allegations had been received by the procurator fiscal in 1995/1996; the known receipt date for a relevant Standard Prosecution Report was 10 December 2020. Accordingly, proceedings were treated as “commenced” after OLR provisions came into force.
  • The court held that the sentencing judge was entitled to find, and the appeal court itself would also have found, that the risk criteria in section 210E of the Criminal Procedure (Scotland) Act 1995 were met, supported by a high-risk assessment under the Risk Management Authority framework.
  • Given the mandatory wording of section 210F, once satisfied (on balance of probabilities) that the risk criteria are met, the High Court must impose an OLR (subject to the statutory exceptions). The appeal court considered an OLR appropriate and, if necessary, would have imposed one itself.
  • Importantly, even if the historic charges had been OLR-incompetent, the court stated it would have imposed an OLR on the 2018 charge, and the historic conduct could still have been treated as part of a “pattern of behaviour” under section 210E.

3. Analysis

3.1 Precedents Cited

The court relied on Ferguson v HM Advocate [2014] HCJAC 19, 2014 SCCR 244 for the proposition that an assessed high-risk rating is a “strong indicator” favouring an OLR where the statutory framework permits it. In the present case, the judge accepted the formal risk assessment concluding the appellant met the high-risk criteria on the Risk Management Authority scale; the appeal court treated that as powerfully supportive of the statutory threshold being met.

While the judgment’s core competency analysis was primarily statutory and evidential (rather than precedent-driven), Ferguson anchored the court’s approach to the practical weight of risk-assessment material when applying sections 210E and 210F.

3.2 Legal Reasoning

(a) The statutory scheme for OLRs

The court summarised the OLR framework in sections 210B–210H of the 1995 Act, introduced by the Criminal Justice (Scotland) Act 2003. The key provisions were:

  • Section 210E: defines the risk criteria—whether the offence (alone or as part of a pattern of behaviour) demonstrates a likelihood that the person, if at liberty, will seriously endanger the lives or physical/psychological wellbeing of the public at large.
  • Section 210F: if satisfied on balance of probabilities that the risk criteria are met, the High Court shall impose an OLR (unless making a compulsion order).

(b) Commencement and competency: what counts as a “case commenced” for pre‑2006 offences?

The OLR provisions commenced on 19 June 2006 under the Criminal Justice (Scotland) Act 2003 (Commencement No. 9) Order 2006 (SSI 2006/332). The critical interpretive issue was the meaning and application of Article 2(3): “cases are taken to have commenced when a report of the case has been received by the procurator fiscal.”

The appellant’s argument was essentially evidential: based on a 1997 police letter referring to “additional charges … included in the final report to the Procurator Fiscal”, the court should infer that a relevant report about the historic sexual allegations must have been submitted and received in 1995/1996—placing commencement before 20 June 2006 and, on the appellant’s contention, rendering an OLR incompetent for charges 1, 2 and 6.

The court rejected that invitation. Its reasoning was multi-layered:

  1. Text and institutional practice: by reference to section 12 of the 1995 Act (instructions by the Lord Advocate on reporting of offences), the court treated Article 2(3) as directed to the long-established process of the police submitting a prosecution report to the Crown Office and Procurator Fiscal Service to invite a prosecution decision.
  2. Known documentary anchor: it was known that an SPR for the indictment offences was received by the procurator fiscal on 10 December 2020.
  3. 1995 murder-report context: the 1995 police report to the procurator fiscal primarily concerned a draft charge of murder; references to sexual allegations were brief and unspecific, and embedded as background to character/manipulation rather than as charges formally reported for prosecution.
  4. No corroborating trace: extensive searches (including in response to a court specification of documents) revealed no record in police systems, the procurator fiscal’s records, or National Records for Scotland of any earlier report received relating to AA/BB and the alleged sexual offences.
  5. Inference not justified: the 1997 letter was insufficient, standing alone, to justify a finding that a qualifying report had been received. The court’s “impression” was that only the murder was formally reported and that no indictment was served in 1995/1996.

On that basis, the court held that the appellant had not made out his claim that proceedings had “commenced” (in the commencement-order sense) in 1995/1996; the competency ground failed.

(c) Risk criteria and mandatory consequence

On the merits of the OLR, the court highlighted the sentencing judge’s acceptance of the risk assessor’s conclusions, including: entrenched denial, lack of insight and empathy, grooming/opportunism, manipulative “impression management”, limited protective factors outside incarceration, and the need for long-term multi-agency risk management. The appeal court expressly agreed that, on balance of probabilities, the statutory risk criteria were met.

The court’s reasoning emphasised the structure of section 210F: once the threshold is met, the court is bound to impose an OLR. This framing is significant in sentencing appeals: the debate is often less about a discretionary “choice” of OLR and more about whether the statutory preconditions are satisfied.

(d) The court’s “fallback” holding: pattern-of-behaviour use of earlier conduct

The court added an important observation at paragraph [54]: even if it had accepted the competency argument and treated the global OLR as “inept”, it would have imposed an OLR on charge 8 (2018) and treated charges 1, 2 and 6 as part of a pattern of behaviour under section 210E.

This confirms a practical approach: historic sexual conduct may remain highly relevant to the section 210E risk assessment as “pattern” evidence, even if (hypothetically) not itself capable of attracting an OLR sentence due to commencement limitations.

3.3 Impact

  • Competency disputes will be evidence-led: parties challenging OLR competency for pre‑2006 offending should expect to require more than suggestive correspondence; the court demanded objective support that a qualifying “report of the case” was received by the procurator fiscal.
  • Clarification of “commenced”: the decision aligns “commencement” with the institutional act of receipt of a prosecution report by the procurator fiscal, not simply the taking of statements or investigative activity.
  • Reinforcement of section 210F’s mandatory nature: the appeal court’s language underscores that once risk criteria are met, appellate challenges framed as “excessive” face a steep hurdle.
  • Pattern-of-behaviour reach: the court’s paragraph [54] indicates that older conduct can materially inform the “pattern” analysis under section 210E, supporting an OLR on a later qualifying offence.

4. Complex Concepts Simplified

Order for lifelong restriction (OLR)
An indeterminate sentence used for individuals assessed as posing a continuing serious risk to the public. The court sets a punishment part (a minimum period before parole consideration), but release and ongoing conditions are driven by risk management.
Punishment part
The “tariff” reflecting punishment for the offence(s), distinct from the later risk-based detention and supervision that may continue indefinitely.
Risk assessment order / risk assessment report
A statutory process to obtain expert evaluation (often aligned with Risk Management Authority methods) to assist the court in deciding whether the section 210E risk criteria are met.
Risk criteria (section 210E)
A legal test about the likelihood of serious endangerment to the public if the person is at liberty—based on the offence itself and/or a wider pattern of behaviour.
“Case commenced” (SSI 2006/332, Article 2(3))
Treated in this decision as the point at which a report (in substance a prosecution report) is received by the procurator fiscal, not merely when police make inquiries.
Docket evidence
Notice that further evidence about prior convictions or other conduct may be led, often relevant to risk, characterisation, and sentencing assessment.

5. Conclusion

[2026] HCJAC 36 is a notable sentencing decision on OLR competency and proof. It confirms that, for pre‑2006 offending, OLR competency turns on whether proceedings are treated as having “commenced” by receipt of a qualifying report by the procurator fiscal; the court will not infer such receipt without solid evidential footing. Substantively, it reiterates that once the section 210E risk criteria are met, section 210F makes an OLR mandatory, and that earlier conduct can remain pivotal as part of a “pattern of behaviour” supporting an OLR on a later qualifying offence.