Thomas O'leary V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Menzies,Lord Brodie |
| Neutral Citation | [2014] HCJAC 45 |
| Year | 2014 |
| Docket Number | XC1842/14 |
| Published date | 23 May 2014 |
| Court | High Court of Justiciary |
| Date | 23 May 2014 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Menzies Lord Brodie | [2014] HCJAC 45 Appeal No: XC1842/14 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the Reference under section 288ZB of the Criminal Procedure (Scotland) Act 1995 by THOMAS O'LEARY Minuter; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant: Gebbie, Ross; Drummond Miller (for William McCluskey, Glasgow)
Respondent: Fairley QC AD: the Crown Agent
23 May 2014
Legislation
[1] The Criminal Justice (Scotland) Act 2003 (asp 7) inserted certain provisions into the Criminal Procedure (Scotland) Act 1995 (c 46) to enable the High Court to make an Order for Lifelong Restriction ( OLR) upon a convicted person who meets certain "risk criteria". An OLR is a sentence of imprisonment of an indeterminate period (1995 Act s 210F(2)). The criteria are, in short, that there is a likelihood that the person "if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large" (ibid s 210E). Before making an OLR, the court is bound "to have regard to" a "risk assessment report" (RAR) as well as "any other information" (ibid s 210F(1)). A RAR is a report prepared by a risk assessor accredited by the Risk Management Authority (RMA) upon the risk posed by the person (ibid 210B(3)). It can only be ordered by the court (a "risk assessment order"(RAO)) if the court considers that the risk criteria may be met (ibid s 210B(2)).
[2] Section 210C of the 1995 Act provides that, in preparing a RAR, a risk assessor:
"(1) ... may, ... take into account not only any previous conviction of the convicted person but also that any allegation that the person has engaged in criminal behaviour (whether or not that behaviour resulted in prosecution and acquittal)."
However, it continues that, where a risk assessor does take an unproved allegation into account, the RAR must:
"(2) ...
(a) list each such allegation;
(b) set out any additional evidence which supports the allegation; and
(c) explain the extent to which the allegation and evidence has influenced the opinion included in the report ... ."
The RAR requires to specify, in accordance with RMA guidelines, whether the risk posed by the person is high, medium or low (ibid s 210C(3)).
[3] In terms of section 210C(5), the convicted person may instruct his own RAR. He may also, in terms of section 210C(7), object to the content or findings of the RAR obtained by the court. If he does, he may produce and examine witnesses about these contents or findings and those of his own RAR (ibid).
[4] It is important to note in limine, in connection with the legislation, that the decision on whether the criteria have been met, and thus whether an OLR should be made, rests with the court and not the risk assessor (Ferguson v HM Advocate 2014 SLT 431, LJC (Carloway) at para [92]).
Procedure
[5] On 26 March 2013, after a lengthy trial at Glasgow Sheriff Court, the minuter was found guilty of 8 charges including a series of assaults on two former cohabitees. These were assaults to the severe injury and danger of the life of KB from 2006 to 2008 and of GM in 2011 and 2012. The libels were of punching and kicking, striking with implements and tightening a cord around the necks of the complainers. The minuter has a significant previous conviction in 2004 for assaults on males to severe injury and permanent disfigurement. This resulted in an extended sentence containing a custodial element of just under 5 years. He has a further conviction for assaults on females in 2008, which attracted a one year prison sentence.
[6] The sheriff was concerned that the risk criteria may be met. He obtained a Criminal Justice Social Work Report and a psychiatric report. On 10 May 2013 he remitted the minuter to the High Court for sentence under section 195 of the 1995 Act, having been confirmed in his view that the criteria may be met. On 28 May 2013 the High Court made a RAO under section 210E and appointed an accredited risk assessor to prepare a RAR. The sentencing diet was adjourned until 26 August 2013.
[7] There appears to have been some consternation thereafter when the judge received a letter from the mother of one of the complainers (GM) enclosing a newspaper article, which the judge forwarded to parties and the risk assessor. This prompted the minuter to lodge a Minute intimating his intention to raise a compatibility issue on the basis that section 210C of the 1995 Act is incompatible with Article 6 of the European Convention. The Minute states that the incompatibility is with "the rights to a fair trial and to be presumed innocent until proved guilty according to law". No further specification is given as to how the incompatibility arises. No principles or authorities are cited and no remedy is sought other than a determination of the compatibility issue. The RAR does make some, albeit limited, mention of the incident in the article which concerned the suicide of a girlfriend of the minuter, namely EB, in September 2009, when the minuter was in prison.
[8] By the time the case called again for sentence on 28 November 2013, the minuter had lodged objections to the content and findings of the RAR. He was also proposing to instruct an expert to consider the terms of the RAR. The court adjourned the sentencing diet until 30 January 2014 in order to hear submissions on the compatibility issue and the objections. On 30 January 2014, the judge declined jurisdiction, apparently on the basis that he had prompted the Minute by forwarding the article to the risk assessor. On 10 March 2014, the case called again, when a different judge decided that, instead of determining the issue, he would refer it to a bench of three judges in terms of section 288ZB of the 1995 Act (as inserted by the Scotland Act 2012 s 35). The reasons given by the judge for making the reference are minuted (as required by Act of Adjournal (Criminal Procedure Rules) 1996 rule 40.10(2)(b)) as being "the novelty and potential complexity of the procedure". Parties were directed to lodge a reference by 28 March 2014, but instead they lodged individual drafts. The case required further continuation on at least two occasions until 22 April 2014 to allow a reference to be adjusted (ibid rule 40.10(3)).
The RAR
[9] The RAR, which is dated 7 November 2013, assesses the risk posed by the minuter as "high". The executive summary explains the reason for this as being his "poor emotional and behavioural controls within the context personality difficulties". In particular:
"Assessment of his personality finds evidence of significant borderline, paranoid and antisocial personality traits. He has obsessional and controlling features. Although he is able to remain emotionally stable in many contexts, these characteristics cause him to be particularly sensitive to perceptions of threat or lack of respect which result in feelings of anger that drive aggression. Intense feelings linked to his fragile self esteem are particularly triggered when he is in an intimate relationship with destructive consequences.
His serious violent offending against men and intimate partners has occurred against the background of these life-long difficulties and is exacerbated by the consumption of alcohol or substance abuse (including anabolic steroids) and some beliefs about how he should act that make violence more likely ... ."
The risk assessor considered that the minuter has an enduring propensity to endanger the public; particularly men who aggressively confront him and women with whom he has an intimate relationship.
[10] Under a heading "Limitations of Information", the risk assessor explained that he had had access to summaries of police intelligence about the minuter, rather than original sources, but he stated expressly that:
"in the report it has not been necessary for the Assessor to draw on these allegations in making his conclusions.
If all the allegations are not taken into account, one would still have to conclude that there is high a likelihood (sic) of [the minuter] committing further serious violent offences ... .
If all the allegations are taken into account, then the main effect is to provide some potential additional information about [the minuter's] general pattern of offending behaviour.
Therefore, allegation evidence has little significance in the Assessor's determination, the police intelligence in particular is therefore omitted from the Assessor's considerations of risk level and the likelihood of harm to others in [the minuter's] case" (para 4.1).
[11] These comments relate to a later section in the RAR about what is described as "Unproven and Alleged Offending" (para 4.3.2). It is reported that, although there was no significant discrepancy between the minuter and the police about the nature of his general offending, there was a dispute about the frequency and seriousness of that offending. The minuter "fully admits" to buying and selling drugs, associating with known criminals, being violent towards his girlfriends, being friendly with persons...
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