Factual and Procedural Background
The Appellant, aged 18 at the time of the opinion, appealed the imposition by the High Court on 23 October 2025 of an order for lifelong restriction (OLR) with a punishment part of two years. The Appellant had pleaded guilty to two charges arising from conduct on 18 June 2024 (his 17th birthday): (1) an aggravated assault in which he, while acting with others, repeatedly attempted to strike and struck the 15‑year‑old Complainer on the neck with a large machete causing severe injury and permanent disfigurement and endangering life; and (2) possession in a public place of a bladed article (a machete).
Procedurally, the Appellant first appeared on 20 June 2024 and was bailed. He offered to plead guilty under the Criminal Procedure (Scotland) Act 1995 s.76 and appeared on indictment on 21 May 2025. The sheriff adjourned for a Justice Social Work Report (JSWR), then remitted the case to the High Court under s.195 on the basis that the s.210E risk criteria might be met. A risk assessment order under s.210B was made and a Risk Assessment Report (RAR) prepared. On 23 October 2025 the High Court imposed an OLR with a two‑year punishment part backdated to 9 October 2025.
Legal Issues Presented
- Whether, on the balance of probabilities and in light of the Risk Assessment Report and all material before the court, the statutory risk criteria in Criminal Procedure (Scotland) Act 1995 section 210E were satisfied such that the court was obliged under section 210F to impose an order for lifelong restriction.
- Whether imposing an OLR was appropriate in the Appellant's case given his youth, developmental factors (including an ADHD diagnosis), and the RAR's assessment (characterised by the Appellant as medium risk), as informed by authority including Ferguson v HM Advocate and the Scottish Sentencing Council guideline "Sentencing young people".
Arguments of the Parties
Appellant's Arguments
- The sentence was excessive having regard to the Appellant's youth and the RAR's medium risk rating; the judge should have followed the approach in Ferguson v HM Advocate and the "Sentencing young people" guideline and looked ahead to the Appellant's likely risk on release after rehabilitation, which would not permit the court to conclude the s.210E criteria were met on the balance of probabilities.
- An extended sentence (rather than an OLR) was argued to be the more appropriate disposal in light of the potential for maturation and treatment.
The opinion does not contain a detailed account of the respondent's legal arguments.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Ferguson v HM Advocate [2014] HCJAC 19 2014 SCCR 244 |
Guidance on assessing risk in young offenders and caution about imposing OLR where prospect of change over time makes statutory criteria unlikely to be met. |
Used to frame the question whether a young person assessed as medium risk should ordinarily attract an OLR; court explained Ferguson does not preclude OLRs for young people in all medium‑risk cases. |
| Moreno v HM Advocate [2024] HCJAC 27 |
Authority demonstrating that an OLR may be sustained even where RMA assessment falls short of high risk. |
Distinguished on facts (offender older and offence planning) but cited to show OLRs can be imposed on younger offenders in some circumstances. |
| NS v HM Advocate [2025] HCJAC 24 2025 JC 342 |
Recent authority on OLRs and young offenders, including consideration of personality pathology and denial of offence. |
Distinguished on facts (offender older, different offending and pathology) but relied on as part of the evolving post‑Ferguson jurisprudence. |
Court's Reasoning and Analysis
The court set out the statutory task: where, on a balance of probabilities, the s.210E risk criteria are met the court must, under s.210F, make an OLR. The sentencing judge had the RAR, JSWR and an agreed narrative. The RAR (prepared by a qualified assessor following structured tools such as SAVRY and SAPROF‑YV) recorded a high current risk of serious harm and, after deliberation, concluded a medium risk of enduring harm while identifying multiple historical, social/contextual and individual risk factors and relatively few fully present protective factors. The RAR cautioned about limited predictive certainty beyond 12 months for an 18‑year‑old.
The court analysed the Appellant's persistent pattern of violent behaviour from early childhood, the serious and near‑fatal nature of the machete assault (wound within 3mm of spinal structures), evidence of planning and travel to seek the Complainer, prior convictions for knife assaults and continued violent incidents in secure settings, and inconsistent compliance with long‑term management measures (notably ADHD medication). The sentencing judge had expressly considered youth and mitigation (reflected in a modest punishment part) but concluded on the whole material, including the RAR's emphasis on a need for potentially long‑term monitoring and interventions, that the s.210E criteria were satisfied on the balance of probabilities.
The court addressed the Ferguson guidance (and subsequent cases). It acknowledged that a young age often makes an OLR less likely where risk is medium, but emphasised that Ferguson does not render OLRs impossible for young offenders; the statutory test depends on the facts and the judge's evaluation of the evidence. The court gave limited weight to favourable conduct observed in custody because conditions in custody differ materially from the community. Having reviewed the RAR and ancillary material, the court concluded the sentencing judge was entitled to find the risk criteria met and therefore to impose an OLR.
Holding and Implications
APPEAL REFUSED
Holding: The court upheld the High Court's decision that, on the balance of probabilities, the risk criteria in s.210E were met and that the judge lawfully imposed an OLR with a two‑year punishment part (backdated to 9 October 2025).
Implications: The direct effect is that the OLR remains imposed on the Appellant. The opinion confirms that an OLR can be imposed on a young offender assessed as medium risk where the facts and expert material justify a finding, on the balance of probabilities, that the offender would, if at liberty, seriously endanger members of the public. The court reiterated that youth and prospects of rehabilitation are important considerations but do not categorically preclude an OLR. The opinion also observed that the regime contains no clear provision for removal of lifelong restrictions at a much later date and suggested that this aspect might warrant parliamentary review.