“From Medium-Risk to Lifelong Restriction” – Judicial Discretion to Impose an OLR on Young Offenders Affirmed

Introduction

In Appeal against Sentence by NS v. HMA ([2025] HCJAC 24) the Scottish High Court of Justiciary (Appeal Court) considered whether an Order for Lifelong Restriction (OLR) imposed on a 20-year-old appellant – assessed by the Risk Management Authority (RMA) as a “medium risk” offender – was excessive. The appellant, “NS”, had been convicted of abduction, assault, robbery and serious sexual offences against a paraplegic complainer. He argued that his youth, recent maturity in prison, and the “medium” risk rating made an OLR disproportionate. The court (Lord Justice Clerk Lord Beckett delivering the opinion; Lord Matthews and Lady Wise concurring) refused the appeal, thereby reinforcing the discretionary power of sentencing judges to impose an OLR on young offenders whose risk, though not classed as “high” by the RMA, nonetheless meets the statutory “risk criteria” in s.210E of the Criminal Procedure (Scotland) Act 1995.

Summary of the Judgment

Risk Criteria Applied: The court confirmed that the “risk criteria” focus on likelihood of seriously endangering the public if at liberty; if these are met on the balance of probabilities the court must impose an OLR (s.210F).
Judge’s Evaluation Prevails: While the RMA risk assessor graded NS as “medium risk”, the trial judge was entitled to his own evaluation and to find the risk criteria satisfied where long-term monitoring and supervision were essential.
Youth Not Decisive: The offender’s age and potential for change are relevant but not determinative; an OLR may still be appropriate if the pattern, seriousness and persistence of offending justify indefinite supervision.
Denial as an Impediment: Continued denial of sexual offending, though not fatal to rehabilitation, can legitimately weigh against confidence in risk reduction.
Appeal Dismissed: The High Court held the sentencing judge’s decision to impose an OLR (with a 4-year punishment part) was neither excessive nor wrong in principle.

Analysis

Precedents Cited

Ferguson v HMA 2014 SCCR 244 – Clarified that sentencing judges are not bound by the RMA’s numerical risk rating and must make their own determination. The court revisited Ferguson to highlight its ongoing relevance.
Moreno v HMA [2024] HCJAC 27 – A recent authority upholding an OLR for a young offender assessed between medium and high risk. The appellant sought to distinguish his case from Moreno; the court found the comparison unhelpful because Moreno had no prior sexual misconduct yet still merited an OLR.

Legal Reasoning

Statutory Framework: Under s.210E–F of the 1995 Act, once risk criteria are met the court has no discretion other than to impose an OLR. The appellate court therefore reviewed only whether the criteria were properly found to be met.
Role of the RMA Rating: The RMA’s “medium” label signals amenability to change, but its own definition admits that lifelong restriction may still be required where serious harm is likely absent long-term supervision. The court endorsed the trial judge’s view that the appellant’s developmental progress inside Polmont could not outweigh the persistent, sexually motivated violence shown in the community.
Pattern of Offending: The judgment emphasised three aspects demonstrating future risk:
- Early onset, escalation and planning (use of balaclava, BB gun, forensic awareness such as gloves and enforced showers).
- Selection of vulnerable victims – a disabled adult, younger sister, female staff.
- Enduring denial/minimisation and prior failure of community interventions.
Youth and Maturity: The court recognised age-related prospects of desistance but treated them as merely protective factors, insufficient to outweigh the need for indeterminate oversight.

Impact of the Decision

The ruling consolidates a three-part message likely to influence future sentencing in Scotland:

Medium risk ≠ bar to an OLR. Sentencing courts retain full discretion to impose an OLR where the narrative of offending and risk of serious harm justify it, regardless of the RMA label.
Youthful age provides mitigation but not immunity. Even 18- to 21-year-olds can face lifelong restriction where offending demonstrates entrenched violent and sexual pathology.
Denial may tip the balance. Persistent denial of core conduct may legitimately inform a judge’s scepticism about manageability in the community – a factor future appellants should address explicitly in notes of appeal.

Practically, defence solicitors will need to prepare more robust submissions (and possibly additional expert evidence) when arguing that alternatives such as extended sentences or Sexual Harm Prevention Orders suffice. Equally, the Crown may rely on this authority to support OLR motions in cases previously thought “borderline”.

Complex Concepts Simplified

Order for Lifelong Restriction (OLR): A sentence unique to Scotland combining (a) an indeterminate custodial period fixed by the court (“punishment part”) and (b) lifelong licence conditions after release. Breach of licence returns the offender to custody.
Risk Criteria (s.210E): A statutory test asking whether, if released, the offender is likely to “seriously endanger” the public. It focuses on likelihood and seriousness rather than certainty.
Risk Management Authority (RMA): An independent body responsible for approving risk assessors and issuing Risk Assessment Reports (RARs) that rate risk as “low”, “medium” or “high”. The RMA advises; the court decides.
Extended Sentence: A determinate custodial term plus an additional period of post-release supervision (max 8 years for the sexual element; 5 years for violent offences). Unlike an OLR, release is automatic at the two-thirds point and supervision is time-limited.
Denial & Minimisation: Refusal to acknowledge offending behaviour. In risk management, persistent denial can limit the effectiveness of rehabilitative programmes that require admission and insight.

Conclusion

NS v. HMA represents an important clarification rather than a radical departure: it confirms that an OLR remains available – and sometimes obligatory – even for young offenders assessed as “medium risk” where the pattern and gravity of sexual and violent offending demonstrate a likelihood of serious future harm. The decision underscores the weight courts may place on:

Past conduct signalling planning, escalation, and targeting of vulnerable victims;
Enduring denial and minimisation of guilt;
Expert assessments read in context, not followed mechanically.

For practitioners, the case is a timely reminder that the statutory “risk criteria” are the touchstone. When those criteria are fulfilled, youth, partial progress, or a “medium” label will seldom be sufficient to displace an OLR. The judgment will therefore influence future sentencing submissions, risk assessments, and appellate strategies in Scotland’s serious sexual and violent crime docket.