Orders for Lifelong Restriction and Young Offenders: “Medium Risk” on the RMA Scale Does Not Preclude OLR Where Section 210E Risk Criteria Are Met

1. Introduction

Appeal against Sentence by Cahlum Hamilton against His Majesty's Advocate ([2026] HCJAC 10) concerns the imposition of an order for lifelong restriction (OLR) with a punishment part of two years on an offender who was 17 at the time of the offence and 18 at sentence.

The appellant pled guilty to (i) a severe assault to the danger of life involving a machete and (ii) possession of the machete in a public place, both committed while on bail. The assault involved the appellant and others approaching a 15-year-old at a bus stop; the appellant repeatedly swung a machete and struck the complainer to the back of the neck, producing a deep wound within millimetres of the spinal column.

The central issue was whether, notwithstanding the appellant’s youth and a risk assessor’s conclusion of a “Medium risk of enduring harm” on the Risk Management Authority (RMA) scale, the sentencing judge was entitled (and obliged) to find that the section 210E risk criteria in the Criminal Procedure (Scotland) Act 1995 were met, thereby mandating an OLR under section 210F.

2. Summary of the Judgment

The Appeal Court refused the appeal. It held that the sentencing judge:

  • correctly identified the statutory test under section 210E (likelihood, if at liberty, of seriously endangering the public at large), applied on the balance of probabilities;
  • was entitled, having regard to the agreed narrative, the justice social work report (JSWR), and the risk assessment report (RAR), to conclude the risk criteria were met; and
  • was therefore required by section 210F to impose an OLR.

The court emphasised that an RMA “medium” rating—particularly where the assessor also describes the offender’s current risk of serious harm as “High” and indicates the need for monitoring and supervision on release—does not prevent the court from finding the statutory risk criteria met. It also clarified that dicta in Ferguson v HM Advocate [2014] HCJAC 19, 2014 SCCR 244 suggesting OLR would be “unlikely” for a young man with a medium assessment does not amount to a rule against such disposals.

In obiter, the court highlighted a potential structural issue: there appears to be no mechanism to remove lifelong restrictions even if, decades later, a young offender demonstrably ceases to present a serious risk—suggesting possible future review by the Scottish Parliament.

3. Analysis

3.1 Precedents Cited

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

Ferguson provides the modern framework for OLR decision-making:

  • The sentencing judge must decide whether the section 210E risk criteria are met, taking careful account of the RAR.
  • The judge is not bound by the assessor’s RMA rating, but must engage rationally with it.
  • The assessment must look beyond present custody and consider the point of future liberty (i.e., the time when the offender may be released).

The appellant relied on the observation in Ferguson (para [107] as quoted in the judgment) that where the offender is a young man, the prospect of change through maturity/rehabilitation may render it “unlikely” that the statutory criteria are met, especially where offending is linked to drink/drugs.

The court in [2026] HCJAC 10 treated that passage as illustrative, not prescriptive. “Unlikely” does not mean “never” and does not create a categorical rule preventing OLR for young offenders assessed at medium risk.

The court also noted (without being prompted) Lord Drummond Young’s caution in Ferguson (para [137] as quoted) about the prevalence of youth offending and the possibility that OLR might inhibit natural desistance—confirming that youth is a critical factor, but not a trump card.

Moreno v HM Advocate [2024] HCJAC 27

The court relied on Moreno to demonstrate that, post-Ferguson, the High Court has sustained OLRs for young offenders even where the risk assessment “falls short of high risk”. It undercut the appellant’s suggestion that youth plus “medium” risk should ordinarily exclude OLR.

NS v HM Advocate [2025] HCJAC 24, 2025 JC 342

NS was cited (by the appellant) to show that OLR can be imposed on young offenders, but argued to be distinguishable on facts (older offender, planned sexual offences, denial, and “developing personality pathology”). The court treated NS as part of a line of authority confirming that youth requires careful handling, but does not prohibit OLR where the statutory threshold is met.

MacLean Committee Report (context)

The court referred to the report by Lord MacLean’s Committee on Serious Violent & Sexual Offenders, which informed the introduction of OLRs via the Management of Offenders etc (Scotland) Act 2005. The court observed that the report contains little distinct consideration of young offenders, and nothing to suggest OLRs were not intended to apply to them.

Scottish Sentencing Council Guideline: “Sentencing young people”

The judgment situates OLR within the modern youth-sentencing framework: young people are generally less culpable, more vulnerable to influence, and more capable of rehabilitation; rehabilitation and best interests are prominent considerations, and some sentences may have disproportionate impacts on the young. However, the court reaffirmed that these considerations coexist with (and cannot displace) the statutory OLR scheme where the risk criteria are met.

3.2 Legal Reasoning

(a) The statutory structure: section 210E and 210F

The court restated the core statutory logic:

  • Section 210E defines the “risk criteria”: whether the nature/circumstances of the offence(s), alone or as part of a pattern of behaviour, demonstrate a likelihood that the offender, if at liberty, will seriously endanger the lives or physical/psychological wellbeing of the public at large.
  • The judge must decide that question on the balance of probabilities.
  • If satisfied, section 210F mandates an OLR (“shall”).

(b) Relationship between the RAR’s “RMA rating” and the court’s statutory finding

The appellant’s central contention was that a “medium” RMA rating (and caution about predictions beyond 12 months) should prevent a finding that the statutory risk criteria were met—especially for an 18-year-old.

The court rejected that approach. The RMA definitions themselves contemplate that “medium” risk can still involve a propensity to seriously endanger the public, but with some prospect of manageability/change. The statutory question is not the label; it is whether, considering all information, there is a likelihood of serious endangerment if at liberty.

The court also noted the internal texture of the RAR: the assessor described the appellant’s current risk of serious harm as “High”, and only after “much deliberation” assessed “medium risk of enduring harm”. That hesitation mattered, particularly when coupled with the described need for robust monitoring, conditions, and multi-agency management on release.

(c) Youth, maturity, and the “look-forward” exercise

The court accepted the general point from Ferguson: with young offenders, personality is still developing, and the prospect of maturation and rehabilitation can affect whether the statutory “likelihood” test is met at the time of future liberty.

However, on the facts, the court held the sentencing judge was entitled to conclude that even looking forward to the point of release (particularly given the short punishment part), the risk criteria were met. Key factual anchors included:

  • a longstanding, escalating pattern of serious violence from early childhood across multiple settings (community, care, and custodial environments);
  • repeated weapon-related incidents (including threats to staff and improvisation of weapons in secure care);
  • the extreme gravity of the index assault: a machete strike to the neck within millimetres of the spine, with life-threatening potential; and
  • an enduring neurodevelopmental condition (ADHD) requiring long-term management, combined with historically inconsistent compliance with medication and supervision.

The court also treated as significant the judge’s assessment that the index event was not a “chance and spontaneous encounter”. It rejected as not credible the appellant’s suggestion that he was carrying the machete simply to sell it, noting the contextual narrative of threats, arming, travel, and engagement with associates.

(d) The 12-month prediction caution

The appellant argued that because the assessor cautioned against confident prediction beyond 12 months, the court should treat itself as “disabled” from concluding that the section 210E test was met (given OLR’s lifelong effect).

The court rejected this as an impermissible constraint on the statutory scheme. The statute requires a judicial evaluation based on the evidence available; professional caution about long-range prediction (especially for an 18-year-old) does not remove the court’s obligation to decide whether the statutory threshold is met on the balance of probabilities.

(e) The prison officer’s positive letter

The court acknowledged the favourable report of the appellant’s conduct in Polmont, but treated it as limited in probative value for section 210E because it reflected behaviour in a controlled environment with reduced access to intoxicants and peers. The relevant risk is at liberty in the community.

3.3 Impact

(a) Clarification of “medium risk” and youth in OLR cases

The decision reinforces a practical rule of application: an OLR is not confined to cases where the RAR labels the offender “high” risk, and a “medium” rating—particularly where current serious harm risk is described as high—can still support a judicial finding that section 210E is satisfied, even for a young offender.

(b) Ferguson dicta framed as guidance, not a presumption

Courts and practitioners should treat the Ferguson “unlikely” passage as a cautionary consideration (youth/desistance potential), not as a rebuttable presumption against OLR. The operative test remains the statutory likelihood of serious endangerment at liberty.

(c) Greater attention to “enduring” conditions and compliance history

The court’s emphasis on the appellant’s ADHD as an enduring condition, and on his inconsistent compliance, signals that even where personality is still developing, enduring traits/conditions and demonstrated failures of supervision may powerfully inform “likelihood” under section 210E.

(d) Obiter pressure point: lack of a mechanism to lift lifelong restriction

The court’s observation that there appears to be no provision for removing lifelong restrictions—even where a young offender later ceases to pose a serious risk—may influence future policy debate and litigation strategy (including proportionality arguments). It is not a change to the law in this case, but it is a notable judicial prompt towards legislative review.

4. Complex Concepts Simplified

Order for lifelong restriction (OLR)
A sentence for offenders who meet statutory “risk criteria”. It combines a custodial element (served at least until the punishment part expires) with lifelong post-release restrictions and supervision, managed through risk management planning.
Punishment part
The minimum period that must be served in custody before the offender can be considered for release (similar to a “tariff”). After it expires, release is not automatic; risk management considerations dominate.
Risk assessment order (section 210B)
A procedural step allowing the court to order the preparation of a risk assessment report (RAR) by an accredited assessor, to inform whether the section 210E risk criteria are met.
Risk assessment report (RAR) and RMA ratings
An expert report assessing the risk of serious harm and its likely endurance/amenability to change. RMA “high/medium/low” categories guide analysis but do not determine the statutory outcome; the judge must decide whether section 210E is met.
“Balance of probabilities”
The civil standard of proof: more likely than not. The court applies this standard to the statutory risk criteria decision.
Section 210E risk criteria
A forward-looking test: whether the offence(s), alone or in a pattern of behaviour, demonstrate a likelihood that if at liberty the offender will seriously endanger the public at large.

5. Conclusion

[2026] HCJAC 10 confirms that in Scotland: youth and a “medium risk” RMA rating do not bar an OLR. The decisive question remains whether the court is satisfied, on the balance of probabilities, that the section 210E risk criteria are met when looking forward to the offender’s likely position at liberty. Where a young offender shows a longstanding, escalating pattern of serious violence, weapon use, intervention failure, and enduring risk-relevant difficulties (including compliance problems), the sentencing judge may properly conclude that an OLR is required under section 210F.

The judgment also highlights an unresolved systemic tension: the potentially lifelong nature of restrictions imposed on young offenders, and the apparent absence of a statutory “exit” mechanism even where risk demonstrably extinguishes—an issue the court suggests may merit parliamentary review.