Andrew Kinloch and James Quinn v. Her Majesty’s Advocate [2015] HCJAC 102

Notes of appeal against sentence:- On 14 November 2013, at Edinburgh High Court, the appellants pled guilty under accelerated procedure under section 76 of the Criminal Procedure (Scotland) Act 1995 to a charge of assault and abduction of an inmate at HMP Saughton whereby they detained him against his will in a cell, placed knives at his throat and made various demands. The judge at first instance made a Risk Assessment Orders in terms of section 210B of the 1995 Act. The court appointed Dr Lisa Cameron, a clinical forensic psychologist, and Dr Rajan Darjee, a consultant forensic psychiatrist, to prepare Risk Assessment Reports (RARs) in respect of each appellant and in due course the RARs were produced. Both appellants lodged a Note of Objections and a hearing, including evidence from the relevant doctors, took place on 29 and 30 September 2014 and 12 January 2015. The case was adjourned to allow the first appellant’s report to be updated as there was reference to him suffering from adult ADHD which was treatable and might impact upon the conclusions of the RAR. On 3 March 2015 the first appellant sought an adjournment to allow him to be treated for ADHD. On 25 May 2015 both appellants were sentenced and were made subject to Orders for Lifelong Restriction, with a punishment part, in relation to the first appellant, of 2 years and 7 months and, 3 years and 4 months in relation to the second appellant. The appellants appealed against the imposition of the OLRs. In relation to the first appellant it was submitted that the sentencing judge had not attached sufficient weight to the personal circumstances of the appellant and his adult ADHD and in the whole circumstances the sentence was not proportionate particularly given that the appellant’s ADHD was potentially treatable with medication and his level of risk could be significantly reduced in the future. In relation to the second appellant it was submitted that the sentencing judge had not been entitled to conclude that the RAR had been prepared in accordance with the standards and guidelines in that the appellant’s expert, Dr Johnstone, had identified a number of failures to follow the RMA guidelines and the sentencing judge failed to provide adequate reasons for preferring the evidence of Dr Darjee and rejecting the criticisms made of the RAR by Dr Johnstone. Here the court allowed the appeals and quashed the OLRs. The court stated that the risk criteria were not satisfied and the statutory test for the imposition of an OLR were not met in either case. The court considered that whilst the appellants had significant records, the present offence did not fit into a pattern of behaviour within the scope of the risk criteria under section 210B of the 1995 Act. The court also observed that Dr Darjee’s failure to comply with the RMA guidelines by failing to refer to the second appellant’s education, social work and medical records called into question whether the statutory requirements for a RAR were met. As a consequence the court substituted extended sentences in respect of both appellants. After applying a one third discount for both appellants on account of their early pleas the first appellant was sentenced to an extended period of 6 years, with a custodial term of 4 years and an extension period of 2 years and the second appellant was sentenced to an extended sentence of 8 years and 4 months, with a custodial term of 5 years and 4 months and an extension period of 3 years.