Risk assessments and OLRs
Latest criminal cases, including orders for lifelong restriction; due diligence; supervised release orders; sentencing; civil and criminal overlap
Orders for lifelong restriction
Since 2006, the High Court has had the power to make an order for lifelong restriction (OLR) in respect of individuals who are a serious danger to the public.
The statutory provisions, ss 210B et seq of the Criminal Procedure (Scotland) Act 1995, replaced discretionary life sentences, imposed in certain serious cases falling short of murder.
On 28 February 2014, in Ferguson v HM Advocate  HCJAC 19, the appeal court issued a lengthy judgment considering OLRs imposed on four separate appellants, Ferguson, Cameron, Balfour and Nolan.
There had been concerns that, despite more than 100 OLRs having been imposed since April 2006, hardly anyone had been released, although the punishment part of the sentence had been served. Punishment parts are set at half the length of a determinate sentence, so that the offender might thereafter be managed by the Risk Management Authority, rather than the Parole Board.
The other criticism was that the making of a risk assessment order was a necessary prerequisite to the imposition of an OLR. It was suggested that the court invariably followed the risk assessment, whereas the legislation envisaged an element of discretion. The assessment indicates whether the individual is of high, medium or low risk. While the original proposals had been directed at “high-risk offenders who will need concerted lifelong efforts to minimise and manage their risk”, it was suggested persons assessed at lower levels were being made the subject of orders and the Risk Management Authority and prison authorities were unable to cope.
Ferguson had been given an OLR with a punishment part of 27 months’ imprisonment for the unprovoked stabbing of a friend and various charges of dishonesty, some involving the use of a knife. He was 30 and had a long record involving drink and drugs. The report writer expressed doubts about Ferguson’s motivation to comply with community service and assessed him as medium risk. The judge disagreed and considered him a “violent and dangerous man who meets the risk criteria”. The appeal court agreed and refused the appeal, as there was ample evidence of a likelihood of serious danger to the public.
Cameron had pleaded guilty to attempted murder involving an unprovoked attack on a close family friend. Aged 28 at the time, he had a number of convictions for violence. He was thought to be affected by Asperger’s syndrome. He was given a punishment part of 40 months’ imprisonment, having been assessed as medium risk. The risk assessor concluded that the appellant’s violence was extreme, but his “psychological profile could not be regarded as rare or unusual within the general prison population”. The appeal court noted the injuries inflicted were severe, but there was “no aggravation by way of lasting sequelae”, and that the appellant had been extremely drunk at the time of the incident, which followed a family funeral. The OLR was quashed and an extended sentence of 10 years with a custodial element of six years, eight months substituted.
Balfour had pleaded guilty to five charges of repeated assaults against different ex-partners, two of whom had children by him. The charges spanned 17 years. Balfour was now aged 40. He had 14 previous (summary) convictions and was assessed as high risk. The judge imposed an OLR, fixing the punishment part at four years. The appeal court considered that were he to be released from a finite sentence, with or without supervision, he would remain a serious danger to the public. Lord Clarke said Balfour fell to be regarded as an exceptional offender “in view of the very extreme and repeated nature of the violence which he visited upon” his ex-partners.
Nolan pleaded guilty to attempted murder by repeatedly stabbing his male partner to his severe injury, permanent disfigurement and impairment, and danger of life. They had been consuming alcohol and cocaine and, when the appellant said their relationship was over, the complainer brandished a knife, which the appellant wrested from him, stabbing him five times on the body. Nolan was 42 at the time, had 27 previous convictions, and had already served an extended sentence of 10 years for attempted murder. He was assessed medium risk, suffering from an antisocial but not psychopathic personality. However, the judge considered him a “dangerously violent man” and imposed an OLR with a punishment part of four years, eight months. The appeal court agreed; the likelihood of repetition of serious violence was made out and an OLR was mandatory.
The appeal report is a helpful collection of cases and contains a full exposition of the policy background to the legislation and how procedures should operate in practice. Notwithstanding the important link between the making of a risk assessment order and the OLR, the judge and appeal court have the final say in assessing the circumstances of the offence and record to determine whether the criteria are met.
Many important statutory offences contain a defence of due diligence, and it is vital that this is adduced clearly if it is to be given effect by the court.
In Epic Group Scotland Ltd v Procurator Fiscal, Aberdeen  HCJAC 20 (19 February 2014), the company appealed against a conviction for selling alcohol to two 17-year-old girls at its club premises. The question was whether it had used all due diligence to prevent the sales occurring. The girls had dressed and styled their hair to look older and a police officer who saw one of them thought she was over 18. The girls had not been asked for identification on entering the club or when they were within it.
The company operated a system designed to prevent under-25s entering or being in the club without having their identity checked. All staff were required to seek proof of age; failure to adhere to the policy by, for example, selling alcohol to someone underage would be regarded as a sacking offence. A manager accepted that on a busy Friday night there was a possibility of underage persons getting into the club.
The justice found the manager’s evidence “mostly reliable”, but did not specify what evidence he found unreliable. He was not satisfied that the policy was effective and “had been seen to be working”; the company ought to have anticipated the possibility of young people dressing to appear older.
The appeal court accepted that the justice had misdirected himself and had not asked whether the company had exercised due diligence to prevent underage alcohol sales. There was no evidence of other incidents, or of any failure on the part of the manager to train or make staff aware of the policy and apply it. Accordingly, the conviction was quashed.
In Hughes v HM Advocate  HCJAC 18 (7 February 2014), the appellant was sentenced to 20 months’ imprisonment (discounted from 30 months for an early plea), with a supervised release order, for assault to injury and permanent disfigurement.
The complainer and friends had been in a pub when the appellant barged into them and was aggressive. Despite attempts to calm him down, he hit the complainer on the head with a bottle and punched him repeatedly on the face. He had “led a useful and productive life” since a conviction for assault six years previously.
The appeal court considered the sheriff had given insufficient weight to the social work report, which highlighted progress with alcohol problems and remorse expressed. The appellant’s circumstances and the potential risk he posed were not such that a supervised release order was necessary. Such an order would be required only when necessary to protect the public from serious harm on the offender’s release. The court also assessed the starting point for sentence as 18 months’ imprisonment, and with full discount imposed 12 months.
The impact of article 8
In Gorrie v Procurator Fiscal, Haddington  HCJAC 10 (21 January 2014) the appellant cultivated 18 cannabis plants in a bedroom in his flat. He had a significant record and had performed community service in 2011 for a similar offence. He had three children: a daughter, aged 17, whom he saw occasionally; a son, aged 15, who had lived with him since he was an infant; and another son, aged two, who lived nearby with his partner.
The appellant was diagnosed with epilepsy in 2011 and suffered from depression. The social work report recommended a community payback order, but the sheriff imposed four months’ imprisonment, discounted from six months to reflect an early plea. At second sift, it was considered arguable that the sheriff had failed to consider whether the child’s rights under ECHR, article 8, had been engaged.
The appeal court was in no doubt that article 8 was engaged. Careful judgment was needed when considering the proportionality of incarceration and whether it was necessary in the circumstances. It was noted that, with a sentence of four months, an offender would serve at most half of that, and perhaps only a quarter if deemed suitable for release under a home detention curfew. The appellant’s record had otherwise been relatively minor during the past decade. Taking into account time spent in custody, a CPO with 240 hours of unpaid work was substituted.
Criminal and civil overlap
One of the unfortunate side effects of criminal legal aid fixed fees has been the pressure on firms to specialise in criminal work only. Where a client is prosecuted for a domestic offence, advice needs to be given to seek separate representation if contact with children is sought following a separation.
In Reid v Procurator Fiscal, Kilmarnock  HCJAC 16 (31 January 2014), the accused was prosecuted following a disturbance at a house in March 2013. The trial commenced in September 2013, when the complainer gave evidence. In October, the complainer and her daughter swore affidavits complaining about the appellant’s behaviour for the purposes of obtaining an interdict and a power of arrest. The same sheriff who was dealing with the trial granted interim orders on 16 October. The trial concluded on 8 November with the appellant being found guilty and, on 23 December, he was ordered to find £600 caution for a year. No appeal was taken; a bill of suspension was not instructed for a variety of reasons, including a solicitor’s illness, until early January 2014, when the three-week time limit under s 191A of the 1995 Act had long passed.
The appeal court had no difficulty in refusing the application for an extension of time to lodge a bill of suspension. No arguable case had been presented and no objection had been taken to the sheriff continuing to deal with the trial. There was “no reason why two parallel proceedings of this nature cannot continue to be dealt with by the same sheriff”.
Frank Crowe, sheriff at Edinburgh