Appeal Against Sentence by James Donaldson or Murray against His Majesty's Advocate (High Court of Justiciary)

Factual and Procedural Background

The Appellant was convicted after trial in the High Court on four charges involving sexual offending against three complainers, including two children, and was sentenced on all charges to an order for lifelong restriction (OLR) with a punishment part of two years and six months. [1][2][3][4]

The Appellant’s conviction appeal was refused. The sentencing judge obtained social-work and psychological risk assessments, made a risk assessment order, heard evidence from the risk assessor, and imposed the OLR on 9 September 2025, backdating the punishment part to 10 October 2024. [2][5][6][7]

Legal Issues Presented

1. Whether it was competent to impose an OLR in respect of charges 1, 2 and 6, given the dates of the alleged offences and the commencement provisions governing OLRs. [8][9][10][11][12]
2. Whether the statutory risk criteria for an OLR were satisfied. [13][14][15][16]
3. Whether the OLR was excessive or constituted a miscarriage of justice, particularly in light of the alleged gap between the earlier offending and charge 8. [13][17][18][19]

Arguments of the Parties

Appellant’s Arguments

• The Appellant argued that a police report concerning charges 1, 2 and 6 may have been sent to the Procurator Fiscal before 20 June 2006, making an OLR incompetent for those charges. [20][21][22]
• He argued that charge 8 should stand alone, that it concerned an adult complainer, and that neither it nor the charges collectively justified an OLR. [22]
• He submitted that the criminal record did not demonstrate a relevant and continuous pattern of offending, and that the long gap in sexual offending meant the statutory risk criteria were not met. [17]
• He argued that the risk assessor had wrongly treated the 2018 conviction as sexual offending and that untested allegations had not been adequately addressed. [17][23]

Respondent’s Arguments

• The Respondent argued that there was no evidence that a prosecution report concerning charges 1, 2 and 6 had been submitted or received before 2020. The 2006 commencement provisions therefore applied from the receipt of the Standard Prosecution Report in 2020. [9][12]

Table of Precedents Cited

Court’s Reasoning and Analysis

The court identified 10 December 2020 as the date on which a Standard Prosecution Report for the offences on the indictment was received by the Procurator Fiscal. There was no record of an earlier report concerning charges 1, 2 and 6. [12]

The court interpreted the 2006 commencement provisions as referring to the established procedure under which police submit prosecution reports to the Procurator Fiscal for a decision on prosecution. [26]

The documents relied upon by the Appellant showed that a 1995 police report formally contained a draft charge of murder. References to sexual allegations involving the relevant complainers were brief and unspecific, and appeared in the context of the murder investigation rather than as separately reported sexual charges. [27][28][29]

The later statements contained evidence relevant to charges 1, 2 and 6, but there was no record that they had been received by the Procurator Fiscal before 2020. Extensive searches also failed to identify an earlier prosecution report or relevant records. [30][31][32][33]

The court concluded that the letter relied upon by the Appellant did not establish that an unrecovered prosecution report had been submitted before 2020. Ground 3 therefore failed. [34][35][36][18]

Applying the statutory test, the court considered the risk assessments, the risk assessor’s evidence, the Appellant’s history of grooming, manipulation, sexual offending, stalking, threats and intimidation, his lack of insight or remorse, and his poor response to treatment. [19]

The court accepted that the risk criteria were met on the balance of probabilities. Because the statutory language required an OLR where those criteria were satisfied, the court stated that it would itself have imposed an OLR. [19][37]

The court further held that, even if the Appellant had succeeded on the competency argument, the earlier charges could form part of a pattern of behaviour alongside charge 8, for which an OLR was indisputably competent. [38]

Holding and Implications

The appeal against sentence was refused. The court upheld the OLR and concluded that there had been no miscarriage of justice and that the sentence was not excessive. [19][39]

The direct effect was that the OLR imposed on the Appellant remained in force. The opinion identifies no broader implications or new precedent beyond applying the statutory provisions and the cited authority to the circumstances of this case. [19][38][39]