John McKinlay v. Her Majesty’s Advocate [2019] HCJAC 15

Note of appeal against sentence:- On 30 May 2017, at Edinburgh Sheriff Court, the appellant pled guilty to a charge of assault to severe injury and permanent impairment in relation to an incident of throwing a hot liquid into the complainer’s eyes and face. The sheriff remitted the appellant to the High Court for sentence. On 22 June 2017 the indictment called before Lord Uist who, following consideration of a psychiatric report, made a Risk Assessment Order under section 210B of the Criminal Procedure (Scotland) Act 1995 for the purpose of obtaining a risk assessment report. The appellant had a schedule of previous convictions which included two other convictions at the High Court for violence in the previous 5 years. On 6 February 2013 the appellant was convicted at the High Court of 4 charges involving domestic assault to injury and two charges of domestic assault and rape. He was sentenced to an extended sentence of 8 years comprising of a custodial element of 6 years and an extension period of 2 years. During that sentence the appellant committed an assault to severe injury, permanent disfigurement and danger of life on a fellow inmate and on 18 November 2015, at the High Court, he was sentenced to a further 4 years imprisonment. On 7 November 2017 a RAR was available after being prepared by Stephen Evans, a Consultant Forensic Psychologist and Risk Management Authority accredited assessor. Efforts were subsequently made by the appellant’s agents to instruct and obtain their own RAR, however, those attempts were unsuccessful due to the appellant refusing to co-operate with the experts identified. Following various adjournments a Note of Objections to the Risk Assessment Report was allowed to be received late on 13 April 2018 and further efforts were made to instruct a psychiatric report. On 12 July 2018, at the High Court, an evidential hearing took place before Lord Uist during which evidence was heard from Mr Evans in relation to his RAR. The hearing was adjourned until 28 September 2018 prior to which Mr Evans produced a supplementary report and then gave further evidence. In light of the assessments which Mr Evans had carried out in the preparation of his reports he expressed the opinion that the appellant presented as a high risk. In relation to his supplementary report Mr Evans indicated that the appellant’s risk management recommendations were not changed by his review of the further evidence available and he stated:- “The evidence points to the need to lifelong monitoring of behaviour and requirement for restrictions of liberty due to the risk Mr McKinley continues to present to others. There is no evidence of significant change in lifestyle since the first report was completed.” Thereafter the court heard evidence from Dr Robert Brogan who had prepared a report on behalf of the appellant. Dr Brogan considered that the appellant was suffering from a mental disorder with the dual diagnosis of:- (1) Mental and behavioural disturbances due to multiple drug use and use of other psychoactive substances; and (2) Adult ADHD and Dr Brogan expressed the view that it was very difficult to treat adult ADHD in prison and he observed that the appellant had been successfully treated for this condition for a period of four years when he was younger and whilst it would be difficult it would not be impossible to manage the appellant in the community with the use of a Drug Treatment and Testing Order and regular reviews with specialist supervision and monitoring. At the conclusion of the evidential hearing Lord Uist imposed an order for life long restriction with a punishment part of 2 years and 3 months imprisonment. The appellant appealed against the imposition of the OLR. It was contended on behalf of the appellant that the sentencing judge had erred in determining that the risk criteria had been met and there were a number of critcisms of Mr Evans’ RAR identified including that his assessment was largely a paper based exercise having only spent a period of 90 minutes with the appellant. In addition, there was no reference made by him to the appellant’s adult ADHD and insufficient weight had been given to the appellant’s recent improved circumstances spoken to by Dr Brogan and the supplementary report failed to comply with the requirements of section 210C(c) of the 1995 Act, which requires the assessor to explain the extent to which the intelligence reports influenced Mr Evans. It was submitted that the risk criteria provided for by section 210E of the 1995 Act set a high bar for the imposition of an order for lifelong restriction and that had not been met in relation to the appellant and insufficient weight had bene given to considering alternative methods of managing the risk posed by the appellant. On behalf of the respondent it was submitted that the risk criteria were met and the imposition of the OLR was necessary. Here the court refused the appeal. The court observed that the assessment of what evidence to accept and what weight to attach to it was a matter for the judge who presided at the evidential hearings and on the basis of Mr Evans clear evidence it was open for the sentencing judge to hold that the risk criteria had been established. Mr Evans based his conclusion that the appellant presents a high risk because:- (1) a pattern of offending exists since childhood to the present day; (2) there is an absence of protective factors and the appellant continues to offend even when in custody; (3) lack of engagement to address offending whilst in custody; (4) the pattern of offending includes repeated sexual and violent offences; and (5) the appellant meets the diagnostic criteria for Psychopathic Personality Disorder. The question for the sentencing judge was whether, on a balance of probabilities, the risk criteria were met and the evidence accepted allowed the sentencing judge to hold that the risk the appellant at liberty presented to society was high. The question of whether there is a likelihood of serious endangerment stems from the nature and circumstances of the commission of the offence or from a pattern of behaviour of which the behaviour formed a part and that is for the court to determine. The court considered that the sentencing judge was entitled to take the view that the risk criteria had been met and that an OLR be imposed.