Andrew Byrne v. Her Majesty’s Advocate [2016] HCJAC 84

Note of appeal against sentence:- On 11 February 2010, at Glasgow High Court, the appellant pled guilty under the accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to 32 charges of a sexual nature relating to 19 complainers. The offences included:- 11 charges of making arrangements to meet persons under 16, for the purposes of unlawful sexual activity, contrary to section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005; 4 charges of inducing various children to undress, expose themselves, engage in sexual activity and send images via a webcam, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995; 4 charges relating to the possession and taking, distributing or showing of indecent photographs of children, contrary to sections 52A and 52 of the Civil Government (Scotland) Act 1982; 4 charges of having unlawful sexual intercourse with a girl under 16, contrary to section 5 of the Criminal Law (Consolidation) (Scotland) Act 1995; 5 charges of lewd, indecent and libidinous practices and behaviour by persuading boys and girls to send images of themselves engaging in sexual practices, or sending them such images of himself; and 3 charges of procuring the commission of homosexual acts contrary to section 13 of the Criminal Law (Consolidation) (Scotland) Act 1995. A Social Enquiry Report was called for by the sentencing judge which dislosed that the appellant was considered to fall in the very high risk category of re-offending and posed a high risk of causing significant physical and emotional harm. On receipt of the SER the defence instructed and obtained a psychological assessment. On 24 April 2010, in light of the terms of the SER and the defence psychological report, the sentencing judge made a Risk Assessment Order. Thereafter a RAR from Colin Howard concluded that:- “...if at liberty, he would pose a high risk of causing serious harm to the safety of the public at large...The type of harm experienced by a victim of such an assault might be such that it could be difficult or impossible for them to make a full recovery ... There is a possibility that his behaviour might escalate and involve lethal violence ...The main priorities for risk management should be the provision of offence specific work to address his deviant sexual fantasies, sexual preoccupation and deviant sexual interest in children; and prevent him having access to potential victims and opportunities to reoffend...”. On 21 July 2010, having considered the terms of the RAR, the sentencing judge considered that the risk criteria were met and in terms of section 210F of the Criminal Procedure (Scotland) Act 1995 imposed an Order for Lifelong Restriction with a punishment part of 6 years which has now expired. A Note of Appeal was presented on 17 July 2015 as a result of which the sentencing judge stated in his report to the court that he had no reliable memory of the imposition of the sentence or his thought processes in doing so, however, stated that it was clear from the terms of the RAR that the risk criteria were met and felt compelled to impose an OLR. It was contended here on behalf of the appellant that the RAR did not assess the risk at a point in the future when, if it were not for the OLR, the appellant would have been at liberty and not under supervision. On 30 November 2015 the court ordered a further RAR from Professor David Cooke who subsequently reported that he assessed the appellant’s risk as “high” and concluded that:- “...There are no reliable and effective treatments for his sexual offending. The presence of a paedophilic disorder indicates that he will have an enduring propensity to seriously endanger the wellbeing of the public at large. With appropriate monitoring and supervision there is the potential that his risk could be managed in the community.” It was submitted here on behalf of the appellant that the RAR did not adequately address the likelihood of danger at the point when the appellant would otherwise be released in the future under rigorous supervision with which the appellant would be likely to comply and Professor Cook conceived of “a best case scenario” whereby the appellant would engage with services if appropriate services were put in place. It was submitted on behalf of the appellant that on account of various intensive protective orders that might be made post-release an OLR was not required. These measures could include license conditions which could be attached upon release from an extended sentence, for example, the ability of the court to impose conditions regulating the use of the internet. In addition, he would be subject to the notification requirements under Part II of the Sexual Offences Act 2003 and there would be Multi-Agency Public Protection Arrangements which could be made to manage the particular risk at the end of an extended sentence. It would also be possible for the Chief Constable to apply to the sheriff for a Sexual Offences Prevention Order under section 104 of the Sexual Offences Act 2003 once any extended sentence had been completed. It was submitted that, as discussed in Ferguson v H.M.A. 2014 SCCR 244, the time for assessing the likelihood of serious endangerment can only be at the point of sentencing, however, the assessment can also look forward to the point at which the offender would, but for the OLR, be at liberty. Here the court refused the appeal and, having regard to the terms of Professor Cooke’s report, considered that the appellant continues to indefinitely present a risk of serious public endangerment, notwithstanding the existence and availability of a range of measures aimed at reducing that risk. Whilst it was noted that Professor Cooke considered the appellant would comply with the rigourous supervision regime at the present time, that had to be viewed in the context of the appellant being in custody and the fact that the appellant remained a serious danger to the well being of the public at large.