Factual and Procedural Background
On 29 November 2024, a temporary judge imposed an Order for Lifelong Restriction (OLR) on the Appellant, a young offender, following conviction on two charges related to an incident in July 2022 at the Appellant's flat in the north of Scotland. The Appellant was 18 at the time of the offences and 20 when sentenced. He challenged the imposition of the OLR primarily due to his youth and progress made during remand custody, contending that the sentencing judge underestimated his capacity for change given his medium risk rating on the Risk Management Authority (RMA) scale.
The offences involved abduction, assault, robbery, and serious sexual assaults against a disabled male complainer aged 18, who had cerebral palsy and paraplegia. The incident lasted several hours and included threats with a BB handgun, physical violence, and multiple forms of sexual assault. The judge fixed a punishment part of 4 years, backdated to 7 December 2022, following prior remand and a 9-month detention sentence for a separate assault and robbery.
The Appellant has a history of problematic behaviour from an early age, including sexual offending against his younger sister and assaults in a children's home, with a background of poor parenting and care. While on remand, the Appellant showed signs of maturation and engagement with interventions. The sentencing judge considered the detailed Risk Assessment Report (RAR) and concluded that the risk criteria for imposing an OLR were met, given the Appellant’s history, ongoing denial of the sexual offences, and the need for indefinite supervision and monitoring post-release.
Legal Issues Presented
- Whether the sentencing judge erred in imposing an Order for Lifelong Restriction on the Appellant given his age, progress in custody, and assessed medium risk level.
- Whether the Appellant’s denial of sexual offending should have been given less weight in assessing his capacity for rehabilitation and risk.
- The appropriate application of the risk criteria under section 210E of the Criminal Procedure (Scotland) Act 1995 and the RMA risk assessment framework in determining the necessity of an OLR.
Arguments of the Parties
Appellant's Arguments
- The Appellant challenged the imposition of an OLR primarily due to his youth and demonstrated progress while remanded, arguing that the sentencing judge underestimated his capacity for change.
- The Appellant contended that the judge placed undue weight on his denial of the sexual offences, which reduced his perceived capacity to respond to rehabilitative measures.
- The Appellant argued that his circumstances differ from the precedent case cited by the Crown, particularly noting that his risk level was medium rather than between medium and high, and that protective factors identified by the risk assessor supported a lesser sentence.
- The Appellant suggested that a sentence of detention with extended supervision would have sufficed instead of an OLR.
Respondent's Arguments
- This information was not available in the provided opinion.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Moreno v HM Advocate [2024] HCJAC 27 |
Consideration of the appropriateness of an OLR on a young offender with risk between medium and high and evidence of planning. |
The court distinguished the appellant’s case from Moreno, noting differences in risk level, history of sexual misconduct, and circumstances of offending, and found Moreno did not assist the appellant’s argument. |
| Ferguson v HM Advocate 2014 SCCR 244 |
Judicial discretion in determining risk level and application of expert risk assessments in imposing OLRs. |
The court relied on Ferguson to affirm that the judge must weigh expert risk assessments but is not bound by them, and to clarify criteria for imposing OLRs based on risk level. |
Court's Reasoning and Analysis
The court carefully analyzed the evidence, including the detailed Risk Assessment Report and the sentencing judge’s remarks. It acknowledged the Appellant’s youth and some positive progress during remand but emphasized the serious and premeditated nature of the offences, including the prolonged sexual and physical abuse of a vulnerable complainer. The court noted the Appellant’s persistence in denying key aspects of the offences, which impeded rehabilitation and insight, as highlighted by both the sentencing judge and the forensic psychologist.
The court reviewed the statutory risk criteria under section 210E of the Criminal Procedure (Scotland) Act 1995, confirming that the judge must be satisfied on a balance of probabilities that the Appellant poses a likelihood of seriously endangering the public’s lives or well-being. The court referred to the RMA’s definitions of high and medium risk, emphasizing that while the Appellant was assessed as medium risk, the judge was entitled to impose an OLR if the criteria were met.
The court rejected the Appellant’s submission that denial should be given less weight and found the sentencing judge appropriately considered this factor alongside the Appellant’s history and behaviour. It also distinguished the Appellant’s case from Moreno, where the risk profile and circumstances differed significantly. The court concluded that long-term supervision and monitoring were necessary and that the imposition of an OLR was justified.
Holding and Implications
The court REFUSED THE APPEAL, upholding the imposition of the Order for Lifelong Restriction on the Appellant.
The direct effect is that the Appellant will remain subject to indefinite supervision and monitoring due to the assessed risk of serious harm to the public. The decision does not establish new precedent but reaffirms the application of statutory risk criteria and the judicial discretion in imposing OLRs, particularly in cases involving young offenders with serious and premeditated sexual and violent offending.