Appeal Against Sentence by Otu Nyiam also known as Raymond Nyiam against His Majesty's Advocate (High Court of Justiciary)

Factual and Procedural Background

The Appellant was convicted in the High Court in The City on 15 April 2025 of two counts of rape arising from conduct on 20 February 2019 in a flat on the outskirts of The City. The indictment included a docket notifying that two other women (alleged incidents in 2017 and 2018) would be led as similar fact evidence; those earlier incidents resulted in convictions in 2020 and a sentence in 2021. Following the 2025 conviction, the prosecutor sought a risk assessment order and later applied for an order for lifelong restriction (OLR). A justice social work report and a risk assessment report (RAR) were prepared. The sentencing judge made a risk assessment order, heard evidence and reports, and on 26 August 2025 imposed an OLR with a punishment part of 4 years to be served concurrently with the Appellant's existing extended sentence; an indefinite non-harassment order in respect of the two complainers was also made. The Appellant appealed against the imposition of the OLR, challenging whether the statutory risk criteria were met.

Legal Issues Presented

1. Whether, on the balance of probabilities and having regard to the RAR, other reports and evidence, the risk criteria in section 210E of the Criminal Procedure (Scotland) Act 1995 were met such that the High Court was required to make an order for lifelong restriction under section 210F.
2. Whether the sentencing judge erred in law or exercised sentencing discretion disproportionately by concluding that the OLR was required despite the RAR assessing the Appellant's risk as medium and noting potential amenability to interventions and protective factors.

Arguments of the Parties

Appellant's Arguments

• The statutory criteria for an OLR were not met because the RAR assessed the Appellant's risk as medium and identified protective factors and potential for change; an extended sentence would be sufficient.
• The judge placed undue weight on a pattern of past behaviour and failed adequately to "look ahead" to the Appellant's risk at the point of release; the sentencing judge treated speculative or optimistic assessments by the risk assessor as insufficiently persuasive.
• The Appellant had not yet had the opportunity of the extension period of his extended sentence and might respond to supervision, programmes and licence conditions.

Respondent's Arguments

• The judge properly evaluated the RAR and other material and correctly concluded that the risk criteria in s 210E were probably met on the balance of probabilities.
• The pattern of multiple rapes, offending while on bail, personality disorder traits and other historical material justified making an OLR.
• The judge could and should give limited weight to the Appellant's lack of sexual offending in custody, the short-term protective features identified, and the RAR's cautious optimism about amenability to change.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the statutory test in section 210E (nature/circumstances or pattern of offending demonstrating a likelihood of seriously endangering life or wellbeing) and the requirement in section 210F that, if satisfied on the balance of probabilities, an OLR must be made. It reviewed the RAR prepared by Assessor Higginson, which rated the Appellant as Medium risk and identified both concerning personality and behavioural traits and some potential protective factors and motivation for treatment.

The court noted that the RAR suggested some prospect of responsiveness to interventions but also recorded pervasive problematic characteristics (antisocial and psychopathic traits, sexual preoccupation, offending while on bail, lack of intimate relationships, and planning in offending). The sentencing judge was said to have carefully evaluated the RAR and other material, concluded that the assessor had been unduly optimistic in parts (including use of a higher test than the statutory "likelihood"), placed limited weight on non-offending in custody, and found that on the balance of probabilities the statutory risk criteria were met.

The appellate court compared this case with Ferguson and rejected the submission that the Appellant's circumstances were equivalent to the Ferguson appellant; it emphasised the stark differences in offending pattern, personality problems and the repeated sexual offending while on bail. The court concluded the judge applied the correct legal tests, evaluated amenability-to-change evidence appropriately, and gave adequate reasons for concluding the risk criteria were probably met, obliging an OLR.

Holding and Implications

APPEAL REFUSED

Holding: The appeal against sentence was refused. The High Court's imposition of an order for lifelong restriction with a punishment part of 4 years (to be served concurrently with the Appellant's extended sentence) and an indefinite non-harassment order was upheld.

Implications: The direct effect is that the OLR and associated punitive measures remain in force against the Appellant. The court applied existing statutory provisions and precedent (notably Ferguson) and did not purport to lay down new precedent beyond applying established principles to the facts of this case.