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Crown Appeal against Sentence by His Majesty's Advocate against Robert Markward (High Court of Justiciary)
Smart Summary
Factual and Procedural Background
This is a Crown appeal against sentence. The Appellant challenged a 9-year custodial sentence imposed on the Respondent on 12 August 2025 after conviction on ten charges: nine dishonesty offences (theft/fraud) and one charge of assault to injury (charge 9). The sentencing judge (who heard evidence and received a Justice Social Work Report) imposed a substantial custodial sentence but declined to make a risk assessment order with a view to an order for lifelong restriction. The Crown appealed, contending the sentence was unduly lenient and that an order for lifelong restriction should have been imposed in respect of charge 9. The opinion of the court was delivered by Judge Beckett sitting with Judges Matthews and Armstrong.
Legal Issues Presented
- Whether the sentence of 9 years' imprisonment was unduly lenient under the Bell test applied in Crown appeals.
- If the sentence is unduly lenient, whether there is a proper basis for the appellate court to make a risk assessment order under section 210B of the Criminal Procedure (Scotland) Act 1995 (with a view to imposing an order for lifelong restriction).
Arguments of the Parties
Appellant's Arguments
- The sentence was unduly lenient and the sentencing judge erred in not imposing an order for lifelong restriction (OLR) on charge 9.
- The Respondent displayed a pattern of offending against elderly victims using deception, had lengthy previous convictions including convictions while subject to early release, and had escalated to violence when interrupted (charge 9).
- S 210B(1)(a)(ii) made an OLR competent; the Justice Social Work Report and an expert risk assessment suggested the risk criteria may be met and a risk assessment order should have been made.
- Cases such as Johnstone and McFadyen, and authorities on risk assessment, supported the view that the statutory risk criteria can be met even where future offending need not be overtly violent.
Respondent's Arguments
- The sentencing judge gave full, reasoned consideration to all material; the sentence did not meet the test for undue leniency.
- The judge properly assessed the risk evidence and concluded the statutory test for a risk assessment order/OLR was not met.
- The Respondent's age on release and the particular facts weigh against making a risk assessment order.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| HM Advocate v LB [2022] HCJAC 48, 2023 JC 97 |
That an appellate court, when imposing a different sentence in a Crown appeal, could make a risk assessment order and that s 210B(2) may oblige the court to make such an order if the risk criteria may be met. |
The court noted LB foreshadowed the procedural possibility relied on by the Crown but considered the statutory criteria still had to be met; LB did not decide the issue here because the appeal failed on undue leniency grounds and on risk criteria analysis. |
| Mitchell v HM Advocate [2024] HCJAC 8, 2024 JC 284 |
Example where the appellate court imposed a different sentence and, considering risk criteria, made a risk assessment order leading to an OLR. |
The court observed Mitchell as precedent for the procedural course the Crown sought, but applied the case distinction: Mitchell did not control the outcome because the risk criteria were not shown here. |
| HM Advocate v Bell 1995 SCCR 244 |
The established test for undue leniency in Crown appeals (Bell test): sentence must fall outside the range reasonably open to the trial judge. |
The court applied the Bell test and concluded the trial judge's sentence did not fall outside the reasonable range and therefore was not unduly lenient. |
| Johnstone v HM Advocate [2011] HCJAC 66A, 2012 JC 79 |
That future offending need not be violent for the risk criteria to be met; used as authority that psychological harm from non-violent offending can be relevant to risk assessment. |
The Crown relied on Johnstone; the court found the case distinguishable and not supportive of imposing a risk assessment order on these facts. |
| McFadyen v HM Advocate [2010] HCJAC 120, 2011 SCL 337 |
Demonstrates circumstances where qualifying conduct and prior convictions satisfied risk criteria (significant violent/sexual offending forming a pattern). |
The court reviewed McFadyen, explaining its facts involved serious sexual/violent conduct; the court held McFadyen was not analogous and did not support the Crown's position here. |
| Ferguson v HM Advocate [2014] HCJAC 19, 2014 SLT 431 |
That a mature and persistent offender in the medium risk category may meet the statutory risk criteria. |
Cited by the Crown to support possible satisfaction of risk criteria; the court considered it as part of submissions but concluded the statutory test was not met on the present facts. |
| Kinloch v HM Advocate [2015] HCJAC 102, 2016 JC 78 |
Emphasises the requirement of a link between the qualifying offence and the future risk; risk must flow from the offence or a pattern within the scope of the risk criteria. |
The court relied on Kinloch to conclude that there must be a connection between the qualifying offence and the risk of serious endangerment; it found that link absent here and so the risk criteria were not satisfied. |
Court's Reasoning and Analysis
The court proceeded in two stages. First it applied the Bell undue-leniency test. The sentencing judge had seen and heard evidence, received a detailed Justice Social Work Report and victim statements, and imposed a substantial custodial sentence. The appellate court concluded the sentence fell within the range a trial judge could reasonably have adopted and was not unduly lenient; accordingly the Crown's appeal failed on that ground.
Second, the court considered whether, even if it were to increase sentence, it could properly make a risk assessment order under s 210B. The court reviewed the statutory text of s 210B and the risk criteria in s 210E, and emphasised that there must be a link between the qualifying offence (or its circumstances or a pattern of behaviour) and the likelihood of serious endangerment to the public.
Applying those principles to the facts, the court found charge 9 to be a comparatively minor assault on a person connected with the premises who intervened while the Respondent was leaving after dishonesty offences. The court was not persuaded that charge 9, alone or together with distant historical incidents and hospital events more than 25–30 years earlier, demonstrated the requisite pattern linking the qualifying offence to a risk of serious endangerment to the public at large. The court therefore concluded the statutory risk criteria were not made out on the material before it.
Holding and Implications
APPEAL REFUSED
Holding: The Crown's appeal against sentence was refused. The sentencing judge's decision not to make a risk assessment order (and thus not to impose an order for lifelong restriction) was upheld because the sentence was not unduly lenient and the statutory risk criteria in s 210E were not satisfied on the facts of this case.
Implications: The 9-year sentence remains in force and no risk assessment order or order for lifelong restriction was directed by the appellate court. The court emphasised the need for a clear link between qualifying offending and future risk when applying s 210B/E; no new legal principle was created beyond the application of existing authorities.
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