APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 86
Lady Paton Lord Mackay of Drumadoon Lady Cosgrove	Appeal No: XC208/12   OPINION OF THE COURT   delivered by LADY PATON   in   APPEAL AGAINST SENTENCE   by   RYAN THOMAS LIDDELL   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: G Jackson QC, S Collins Solicitor advocate; Capital Defence Lawyers, Edinburgh

Respondent: G Wade, AD; Crown Agent

 

26 July 2013

The offence and the conviction
[1] The appellant was born on 8 February 1991. He lived in Dunblane, where he attended the primary local school. In 1996, as a five‑year‑old schoolboy, he survived the Dunblane massacre, during which a gunman broke into the school and fired indiscriminately at teachers and pupils, killing many and wounding others. The appellant was shot and wounded.

[2] Throughout his youth, the appellant was a continuing source of worry to his mother. As is noted in the risk assessment report referred to below, at page 6:

"His mother is a teacher and throughout his life she has tried to be caring and supportive, and has been keen to try to get him help. However it is clear their relationship has been strained from his pre-school years, due to his behavioural difficulties."

 

[3] In 2008, the appellant was convicted of theft by housebreaking. In 2009, he was convicted of breach of the peace. By then he was in employment. He was living in his own flat in Dunblane, as his mother and step‑father had asked him to leave their home (see page 3 of the psychiatric report by Dr Melanie Baker dated 29 June 2011). He had never had a girlfriend or a partner of either sex (the same report, page 3).

[4] On Sunday 13 June 2010, when aged 19, the appellant spent an evening with friends. He drank a considerable quantity of vodka and beer. In the early hours of Monday 14 June 2010, while under the influence of drink, he was walking near the house of an elderly lady aged 76, who lived on her own ("the complainer"). The complainer had carers who visited regularly to look after her. The appellant got into her house. There he carried out an inexplicable and terrifying attack on the complainer. He was subsequently convicted by a jury of the following offences:

"(001) on 14 June 2010 you ... did enter the insecure dwelling house at S‑Terrace, Dunblane and there assault [the complainer], aged 76 years, residing there, pretend that you were there to perform carer duties for her, push her to the floor and, while she was on the floor, kick her on the head, seize hold of her arms and lift her to her feet, place your hand over her mouth in an attempt to prevent her calling for assistance, scratch her on the face, repeatedly punch her on the head and body, push her to the floor, drag her across the floor, tell her that you wanted to have sexual intercourse with her, remove her clothing and pants and all this you did with intent to rape her and all to her severe injury, permanent disfigurement, permanent impairment and to the danger of her life; ...

 

(004) you ... being an accused person, and having been granted bail on 22 June 2010 at Stirling Sheriff Court, in terms of the Criminal Procedure (Scotland) Act 1995 and being subject to the condition inter alia that you remain within your domicile of citation, namely, S Road, Stirling each day from 7pm till 7am the following morning did on 13 August 2010 and 14 August 2010 at S Road, Stirling, fail without reasonable excuse to comply with said condition in respect that you were outwith the said premises between the hours of 7pm and 7am:

CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(1)(b)."

 

[5] Details of the offences can be found in the trial judge's report. There, the complainer's description of what occurred is quoted at page 4 of the report:

"[The appellant] said he was here to give me my shower. He dragged me, he beat me, he beat me. ... He wanted to have sex with me. I said No and [my son S] would be coming soon."

 

[6] The appellant took off the complainer's clothes, including her pants and incontinence pad. Again in the victim's own words:

"He hammered me and hammered me and hammered me ... He punched me, he kicked me, he wanted sex."

 

[7] An upstairs neighbour, "N", alerted by unusual thumps, screams, squeals of agony, and cries of "No", went downstairs in the early hours of the morning and entered the complainer's flat. As the trial judge reports:

"She found [the complainer] lying on her side on the living room floor completely naked. [The complainer] just made some sort of moan. [N] told [the complainer] that she would return in a minute and then dashed upstairs to phone [S] and also her own daughter, who worked for a personal alarm company. She, her husband and daughter then went into [the complainer's] house. She noticed that [the complainer] had a small pad between her legs. Her face was bruised and bloodied on its left side. Her daughter put a cover over [the complainer] and phoned the alarm company in order to summon the police and an ambulance. [N] heard snippets of what [the complainer]

 

was saying and which included 'he pulled me'. [The complainer],

who normally wore spectacles all the time, was not wearing any spectacles at that time. [N] noticed them at the side of [the complainer's] shoulder and picked them up. There was a lens missing. There were items of clothing strewn round the floor and some items lying on the couch. [N] had never seen this before and described [the complainer] as a person who kept everything tidy. The police and ambulance... arrived within a short time.

 

...

 

[The complainer] was admitted to the Accident and Emergency Department of Stirling Royal Infirmary at 0523 hours on 14 June 2010. She was vomiting and complaining of pain in her left shoulder and face. Examination revealed injuries to her head and body and her back, elbow, humerus and left shoulder were tender. X‑rays revealed a comminuted fracture dislocation of her left shoulder. She was given morphine for her pain and an anti‑sickness drug. Her left arm was placed in a sling and she was referred to the orthopaedic department. There it was noted that, in addition to the injuries already mentioned, she had tender hips on movement with pain on flexion mostly on the right side. She was given morphine intravenously for the pain between 14 and 21 June and on 22 June was admitted to surgery for hemi‑arthroplasty of her left shoulder under general anaesthetic. She remained an in‑patient in Stirling Royal Infirmary until 12 July 2010, when she was transferred to Bannockburn Hospital for further rehabilitation. She remained there until 2 September 2010. Her son stated in evidence that at the time of the trial she was living in a nursing home. All she was able to do was to sit in a chair. She could not move her arms or legs and was completely incontinent. She had lost a tooth and her right eye drooped. She was unable to live alone at home."

 

[8] In his first interview with the police, the appellant gave an account of his movements which in effect denied any involvement in the incident.

[9] Following his second interview with the police on 14 June 2010, the appellant gave a statement which was noted as follows:

"All that stuff I said did happen, buying fags, I went to Stirling to see if any pubs or clubs were open. Then I came home and went out a wander, out my door, turned right, then right again, then left, then left past the phone box, past the house. The door was open. I went in, had a look, a woman started screaming coming towards me, I pushed her, I think I hit her as well. I can't really remember, then out the back door."

 

[10] In his third interview, the appellant was noted by the trial judge to have said that he:

"... went for a cigarette and 'a wee wander'. He described himself as being pretty blitzed. He saw a house door open so he went in to have a look and some woman was there who just started screaming at him and he panicked and pushed her. She was quite old. She started to try and push him so he pushed her and she fell over. He thought she hit her head. He then ran out the back door. He dropped his packet of cigarettes in the house. He denied having removed any of the lady's clothing, having dragged her to the bedroom or having said he was going to have sex with her. He admitted having kicked her while she was lying on the floor as she was screaming and he wanted her to be quiet. There was blood on his leg and shoes. He admitted that he put his hand over her mouth and punched her before she fell to the ground and he kicked her. He accepted that when he went home he put his clothing [in] the washing machine."

[11] In his fourth interview, the appellant was noted by the trial judge to have said that he:

" ... could not recall what clothing the woman was wearing on the lower half of her body 'probably coz ah was blitzed'. He denied having removed her underwear. He said that when she fell to the floor after he pushed her he picked her up again by putting his hands under her arms. He denied having been in her bedroom. He said that he had kicked her once and thought he might have punched her three times. He felt pretty upset about what had happened in the house. He denied that there was any sexual reason for his going into the house. He claimed that he said sorry to the woman when he pushed her down and just after he picked her up. He could not remember if she said anything back to him.

 

At the conclusion of the fourth interview he was taken to the charge bar and cautioned and charged. He replied 'It's not true'."

 

[12] The appellant gave evidence at his trial. A summary of his evidence is contained at pages 10 to 12 of the trial judge's report, as follows:

"He admitted having been with his friends in the woods on the evening of 13 June 2010 and having subsequently entered [the complainer's] house at about 0345 hours on 14 June 2010. He had gone out for a walk as the medication for his ADHD had worn off. He saw a door ajar and thought he would have the chance to rescue somebody. He did not know who lived there. He had always had a childish fantasy that he was a hero. He said hello at the door. He was half in and half out of the door peering into the bedroom area to the left. When he turned round [the complainer] appeared from the living room and was screaming. She came up and pushed his right arm so that he was turned around and the door shut on his arm. She was naked apart from a pad. Her push made him pivot round and she closed the door behind him but his arm was trapped in it. He barged the door and, as [the complainer] was behind it, she fell over. He saw her lying there and went back in to try to help her. She was mumbling, half screaming and half moaning. He failed to lift her up and tried to get her into the living room. He had had first aid training and was planning on putting her in the recovery position. He had seen blood on her face when she fell and he was going to wipe her face. He put his arm under her but did not succeed in lifting her and eventually it was a case of pretty much dragging her. He got her into the living room and tried to calm her down. He said 'Calm down, I don't want to harm you, I want to help you'. He was positive that he did not say that he wanted to have sex with her. He put his hand over her mouth and she bit his finger, which started bleeding. He decided to try to find a bathroom to wash his hand. He went into the kitchen first. After he had washed his hands he got some kitchen roll and wiped his hand and went to try to get the blood [off] [the complainer]. He used a yellow piece of clothing to do this but was muffling her and therefore stopped. He saw a packet of yellow napkins and used them instead. [The complainer's] clothes were on the right side of the sofa. All her clothes were on the living room floor except her dressing gown and the towels which were on the arm of the settee. He took the yellow napkin, wiped her face and put it to the side. After a while she became hysterical and he very stupidly slapped her three times to try to calm her down. She was breathing very quickly and trying to make squealing noises in between her breaths. He just wanted to calm her down so that he could properly work on her. He was not too sure, but he thought that he maybe hit her a wee bit too hard as he was under the influence of alcohol. He believed that her major injuries were caused by her falling to the ground. He then washed his hands again and went to the front door. On opening it he saw someone coming down the road about 20 yards away. He then went to the back door. On his way [the complainer] grabbed his left leg. He jerked his leg to try to get free and struck her. He then ran out the back door, went home and was sick three times in the toilet. He washed his clothes. He thought that if he had been found in [the complainer's] house people would suspect him. He had nothing to do with her clothes coming off. He accepted that the cigarette packet found in her living room was his. He believed that it fell out when he was trying to get her into the living room. He did not enter [the complainer's] bedroom at all."

 

[13] On 2 June 2011, the jury convicted the appellant of charge 1 (by a majority) and charge 4 (unanimously). Charges 2 and 3 had been withdrawn by the Crown.

 

The relevant legislation: risk assessment order and risk assessment report
[14] The Criminal Procedure (Scotland) Act 1995 provides inter alia:

"Risk assessment order

s.210B(2) Where [it appears to the court that a person has a propensity to commit a sexual, or a violent offence, or an offence which endangers life] the court, at its own instance or ... on the motion of the prosecutor, if it considers that the risk criteria may be met, shall make a risk assessment order.

(3) A risk assessment order is an order -

for the convicted person to be taken to a place specified in the order, so that there may be prepared there ... a risk assessment report (that is to say, a report as to what risk his being at liberty presents to the safety of the public at large) ...

 

Risk assessment report

s.210C... (7) If ... the convicted person intimates ...

(a) that he objects to the content or findings of the report, and

(b) what the grounds of his objection are

the prosecutor and he shall be entitled to produce and examine witnesses with regard to

(i) that content or those findings, and

(ii) the content or findings of any risk assessment reports.

 

The risk criteria

s.210E For the purposes of sections ... 210B(2) ... 210F(1) and (3) of this Act, the risk criteria are that the nature of, or the circumstances of the commission of, the offence of which the convicted person has been found guilty either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large ...

 

Order for lifelong restriction or compulsion order

s.210F (1) The High Court, at its own instance or on the motion of the prosecutor, if it is satisfied, having regard to -

(a) any risk assessment report submitted under section 210C(4) or (5) ...

(c) any evidence given under section 210C(7) and

(d) any other information before it

that, on a balance of probabilities, the risk criteria are met, [shall] ... make an order for lifelong restriction in respect of that person"

 

[15] If a sentencing judge finds, on a balance of probabilities, that the risk criteria are met, he has no option but to impose an order for lifelong restriction (Johnston v HM Advocate 2011 SCCR 470, deciding also that the word "shall" had been omitted per incuriam by the parliamentary draftsman).

 

Reports and plea in mitigation
[16] The trial judge obtained reports, including psychiatric reports, copies of which he appended to his report to this court. In the criminal justice social work report dated 17 August 2011, at section 7 "Risk Assessment", various risk factors are listed, and the following conclusions reached:

"Due to the above risk factors, [the appellant] is judged to be at high risk of re‑offending ... The risk of serious harm in the event of re-offending is ... judged to be high. [The appellant's] offending behaviour is extremely concerning and he is judged to present a risk of serious harm to the public. The fact that he has twice breached the terms of his bail curfew may indicate a lack of regard for the law ..."

 

The section headed "Conclusion" adds:

"[The appellant] presents as a strange young man who, while his functioning is undoubtedly affected by ADHD and possibly by other deficits, is perhaps seeking to use his condition in order to present a less sinister picture of his offending behaviour. He appeared to wish to present all of his offending behaviour as a sequence of misunderstandings on his part in tandem with various accidents ..."

 

[17] In a plea in mitigation on behalf of the appellant, it was said inter alia that:

"The appellant was now 20 years old. He had had significant difficulties in his background. He had carved out some kind of productive life in that he had held down a job for three years. The reference by him in section 8 of the social enquiry report to a plot to ruin his life was a reference to how his life had been affected in that he had lost his job and his house had been attacked. It was unfair to conclude that he had a propensity to attack vulnerable people. In the previous incident mentioned in the social enquiry report, in which he had gone into the house of an elderly man, nothing had happened and he was not even prosecuted. Mr Gilchrist [QC, Senior Counsel for the appellant,]entirely recognised that the offence itself might give rise to concerns about future risk. The appellant's attitude was realistic and he was thinking forward to his future. He had already decided to give up drinking. He had been spoken to in prison about the various courses open to him. Other concerns could be addressed in prison."

 

A risk assessment report
[18] In view of the circumstances of the offences and the terms of the reports, the trial judge made a risk assessment order. A risk assessment report by Dr Darjee dated 9 November 2011 became available in due course.

[19] In our opinion, that report discloses a very concerning picture. In particular, the following features of the appellant's personality and behaviour are described.

 

(1) A pattern of offending
[20] While the executive summary at the beginning of the report acknowledges -

"2. [The appellant] does not have a previous history of serious violent or sexual offending. He has been charged and/or convicted of offences involving stealing and breaking into vehicles and properties. He has not previously received a sentence involving community supervision or custody ...

6. He does not have an established pattern of violent or sexual offending. There remains uncertainty as to his motivation for committing the index offence ... [emphasis added]"

 

- it is noted later on in the report that (even if there was not an established pattern of violent or sexual offending) there was nevertheless a "pattern of offending". At page 23 it is recorded that:

"There is a pattern of offending in this case (and I will include allegations that have not led to conviction in considering this). Starting with minor property damage and progressing to stealing and breaking into cars, garages and houses, including an episode where he broke into the house of an elderly man and climbed into bed next to him, culminating in the index offence. All of his offending has been at night time when he has been very intoxicated with alcohol and wandering. Considering his offending before the index offence, it is difficult to formulate a 'rational' understanding of his motivation. Some of his stealing appears to have been acquiring objects for his den, but some of it does not appear to have been for any apparent reason. It is difficult to understand why someone would repeatedly when very intoxicated break into vehicles and properties to sleep when they could sleep in their own home."

 

[21] Further detail of the appellant's pattern of offending is given in the report at pages 12 to 13 as follows:

"1. Previous Convictions and Allegations

 

In June 2007 [aged 16], whilst in the company of two females, he damaged a wooden pirate ship in the nursery school playground at Dunblane Primary School by ripping off the flag and damaging part of a rope. He admitted his part in this, he apologised to the headmistress and was willing to pay to replace the flag. He was given a warning letter.

 

Further in June 2007 [aged 16], he took a wallet which he had found and removed a bench from a garden. He allegedly ripped up the cards from the wallet and threw them about his den; and he also took the bench apart leaving it in pieces in his den. I understand that neither of these led to him being convicted.

 

In 2007 [aged 16], there were charges that in May he stole six garden solar lamps, in July he stole a garden statue, and in December he stole two ladders. He took some of these items to the den. Again I understand these did not lead to conviction.

 

In August 2007 [aged 16], he was charged with stealing clothes poles which were again found at the den. There was a co‑accused. Again I understand that these did not lead to conviction.

 

In December 2007 [aged 16], he broke into a house owned by a female (age unknown) and stole two bracelets. He had been out drinking and was out late at night riding around on his bicycle. He smashed a kitchen window and through it grabbed the bracelets. He spent a period of time hiding in the garden shed. He was apologetic when he was interviewed by the police and also admitted to other crimes (some of which have been referred to above).

 

In May 2008 [aged 17], he broke into a garage and a car and had slept in each. He had been drinking heavily, was locked out of his house, and could not get into his grandparents house. Apparently he eventually woke up in a hedge. He left his bag and identification in the car. The matter was not pursued.

 

In August 2008 [aged 17], there were allegations that he broke into a house, removed four candlestick holders from a window ledge and removed them to a wheelie bin outside the window. When questioned by the police he admitted that he had been very drunk, and he admitted that he might have gone into the house to hide. He stated he was not there to steal. As far as I am aware this has not led to conviction.

 

In August 2009 [aged 18], it appears that when he was drunk he tried to climb into a garden, the owner told him to go home, but then the owner heard a loud thump and found him within the garden shed. He was eventually found by the police in another garden hiding under a sun lounger. The charge against him was that he was found in circumstances where it could reasonably be inferred that he intended to commit a theft. In the police report it was noted that he had been found previously drunk asleep inside an insecure car and that he had been found within an unlocked garage asleep. A few vulnerable person reports were noted which included him being reported missing by his parents when he was 16 years old after being found drunk and asleep within an insecure garage.

 

In September 2009 [aged 18], he was a suspect in an incident where two boys were approached whilst walking in the woods. The person who approached them shouted and swore at them. He showed them a knife and then chased them some distance on to a pathway. As it happened in the vicinity of the den, Ryan Liddell was interviewed but did not admit being involved, and the boys were unable to identify him. Therefore this was not taken any further.

 

In September 2009 [aged 18], he broke into a house belonging to an 83 year old man. Ryan Liddell gave me the same account of this that he has given in other reports. It was late at night and he had been drinking. He had been chasing a rabbit, he found himself in a garden, he felt sleepy and lay down against the side of a house. It was a cold night and the house looked abandoned. There was a shed at the back with some ladders and he climbed up the side of the house. He broke a window with his elbow and climbed in. He lay in a bed and went to sleep. After a while he felt himself being prodded with a stick by the elderly man. He said he was sorry and was led down the stairs and left the house. From the police report it appears that Ryan Liddell got into the same bed as the elderly man, rather than being in another bed as he has claimed. It was also noted that a number of lights in the house appear to have been put on by Ryan Liddell. The victim also noted that several chests of drawers and wardrobes within his house had been entered, but nothing appeared to be missing. The incident occurred about 200 yards from Ryan Liddell's house.

 

He does not have a previous history of violent or sexual offending."

 

(2) Odd personality, bizarre, anti-social and delinquent behaviour
[22] Even before the above described pattern of offending emerged (beginning when the appellant was aged 16), the appellant exhibited an odd personality and behavioural disorders from a very early age (beginning when he was three years old). Paragraphs 3 and 4 of the executive summary record:

"3. He has had behavioural problems from a very early age, pre-dating when he was shot in the Dunblane tragedy. These behavioural problems continued throughout childhood, into adolescence and into early adulthood. He has been in contact with mental health services since the age of 3. He was diagnosed as suffering from attention deficit hyperactivity disorder (ADHD) and received treatment for this with medication. Although this treatment seems to have helped with his attention and restlessness, problems with his behaviour and relationships with others continued. His mother has been very supportive towards him but has found it very difficult to cope with his behaviour. It appears that he was quite a bright child, he achieved a number of qualifications at school and he attended agricultural college. Three months prior to the index offence he had moved into his own accommodation, he had developed a pattern of drinking heavily some evenings and going out wandering at night. This pattern of going out wandering and spending time outside has been established since he was at school. He worked at a restaurant for three years prior to the offence.

 

4. He has an unusual personality characterised by oddness, eccentricity, awkwardness, social anxiety, apparently inappropriate emotional responses, recklessness/impulsivity, inability to form close relationships, low self-esteem and feelings of inadequacy. The possibility of an autistic spectrum disorder has been raised in this case, and although he has some features of this he does not have all the features ..."

 

[23] Further details of the appellant's odd personality and behaviour are given in the course of the report. For example, at page 7:

"3. The Dunblane Shooting

 

As mentioned above, there were serious concerns with his behaviour before the Dunblane shooting in 1996 ... he had been referred to mental health services ...

 

Ryan Liddell's current perception is that being shot and the experience of being a victim of the Dunblane massacre did not have any long term impact on his psychological development. Despite an initial improvement in his behaviour following the shooting, the same problems re-emerged. In 1997 there were descriptions in records of him being 'disruptive, attention-seeking, hyperactive and aggressive towards other children'. It was in 1997 that he was commenced on Methylphenidate (a medication used to treat attention deficit hyperactivity disorder ADHD) ..."

 

[24] At page 20 of the report, further behavioural problems are noted as follows:

"5. High School

 

He attended Dunblane High School from 2002. There were immediately problems with his behaviour, descriptions of him 'showing attention-seeking behaviour, refusing to do as he was told', and at home problems getting him up and ready for school leading to frequent arguments. His mother described that around this time there were increasing problems, particularly following the birth of his step siblings. There were descriptions of him making phone and animal noises in class, and the report from school at the end of 2002 described a number of difficulties with his behaviour in school including: him being very noisy, not staying still, not listening to teachers, seeming bored, repeating the teacher's last word, being reckless, ignoring teachers, making faces, making silly comments, annoying other people by kicking them and hitting them with rulers, and particular problems with unstructured times such as breaks. There were particular problems with his written work, and in his exams he was given extra time and a scribe. He described being bullied at school.

 

From the age of 15 onwards his mother became increasingly concerned about his behaviour. There continued to be difficulties in getting him to school. In the mornings his mother and his grandparents needed to actively supervise him going to school in a similar way that they did with their younger primary school children. He started to spend time with a peer group who drank and who his mother feels took advantage of him. He was drinking alcohol heavily at times. He stayed out late at night and sometimes right through the night. Some of these times he stayed in a den that he built in the woods. There was increasing contact with the police due to him collapsing drunk or offending ... His behaviour put increasing strain on his relationships with his mother and family. At this time he remained on treatment with medication for ADHD. He was suspended once and truanted particularly over the last two years of school. Despite these difficulties he gained a number of standard grades and highers, although he did not achieve as well as he should have. Whilst at school he initially had aspirations to be a mechanical engineer, but was not able to do this as he failed the relevant subjects. He then wanted to be a ranger as he had very much enjoyed work experience he had done, and when he was doing this work experience he was described as being committed, good at the work and appropriate in his behaviour ..."

 

[25] Further, at page 20:

" ... The following risk factors have been identified in this case ...

 

Static/Historical Factors

...

·       Childhood behavioural problems (early aggression is associated in a general way with offending and aggression in adulthood, however it is important to note in this case that his aggressiveness did not persist throughout childhood and adolescence).

·       Nature of sexual offending (sexual offending against a stranger is associated with a greater likelihood of further sexual offending ...) ...

·       Alcohol misuse (alcohol/substance misuse is associated with general re‑offending and violent re-offending ...) ...

·       Lack of long term intimate relationships (inability to maintain long term intimate relationships is associated with recidivism) ...

·       General history of offending (having a history of general offending - in this case housebreaking and theft - is associated with re-offending; but although he has committed offences since a young age he has not committed a very diverse range of offences).

·       Breach of supervision (having a history of breaching supervision - in this case bail - is associated with re-offending and points to potential difficulties with future supervision ...

 

Stable Dynamic/Dispositional Factors

...

·       Coping with stress (in some ways as a child he appears to have been quite a resilient individual who coped better than some might have expected with being a victim of the Dunblane shooting; however as an adult there is evidence that he has been unable to cope with stress).

·       Impulsivity/recklessness (he does not appear to stop and consider the consequences of his behaviour before acting - alcohol may have played a role in this).

·       Personality disorder (he has significant schizotypal, anti-social, schizoid and avoidant traits; he is an odd and awkward individual who finds it difficult to relate to others; he is reckless and impulsive; he is somewhat aloof and seems to live in his own world and does not appear to have any close friendships; he feels inadequate and anxious in his relationships with other people).

 

Proximal/Acute Factors

·       Intoxication with alcohol (disinhibition through alcohol intoxication was clearly of relevance to the index offence).

·       Wandering (his pattern of wandering at night time was clearly of relevance to the index offence).

·       Jealousy (it may be that the jealousy he felt about his friend's relationship with the female he was attracted to played some role).

·       Chaotic lifestyle (his unstructured lifestyle with limited ability to structure his time, establish routines and look after himself may have played a role).

·       Rejection of support (distancing himself from the support and supervision of his mother and family may also have played a role).

·       [Non-c]ompliance with treatment (there is a possibility that not taking his ADHD medication may have played a role in him being restless and wandering that night)."

 

[26] Highly significantly, at page 24 of the risk assessment report Dr Darjee notes:

"It is difficult in this case to find evidence of a period of Ryan Liddell's life where he has functioned well and without getting into trouble ... It is notable that he has been very apologetic after offending previously, and this pattern mirrors what happened when he was involved in difficult behaviour at home and at school as a child. But despite apologies he has repeated similar behaviour. As we know from the literature on offending generally, accepting responsibility for your offending and apologising for it is not related to a decreased likelihood of further offending ..."

 

[27] At page 36, Dr Darjee describes the appellant's personality disorder in the following terms:

"Ryan Liddell has a personality disorder, in that he has had interpersonal, emotional and behavioural problems starting in early childhood, continuing through adolescence and as an adult. Not unusually he has a number of traits or criteria from a number of different personality disorders. He reached the diagnostic threshold for schizotypal personality disorder and anti-social personality disorder. He has probable schizoid and avoidant personality disorders. The schizotypal personality traits reflect his oddness, eccentricity, his strange affect, his awkwardness and social anxiety; the recklessness and impulsivity; the schizoid personality traits he displays are solitariness, lack of close friends and emotional detachment; and the avoidant personality traits that he displays are showing restraint within relationships because of fear of being shamed or ridiculed, being inhibited in new interpersonal situations because of feelings of inadequacy, viewing self as socially inept and personally unappealing or inferior to others ..."

 

[28] At page 39, there is further reference to the personality disorder (using the International Personality Disorders Examination IPDE) and to alcohol abuse:

"12. Psychopathic personality disorder - As outlined above, there is no evidence of psychopathic personality disorder in this case. However, he does have a personality disorder with schizotypal, anti-social, schizoid and avoidant traits ...

14. Problems with substance use - He clearly has a history of alcohol abuse. His alcohol abuse has placed him at risk and has also been a factor in all of his contacts with the police and the index offence ..."

 

(3) The attack itself: a sexual aspect
[29] The appellant was vociferous that there was no sexual motivation underlying the attack. Yet there were circumstances and features of the attack which point to some sexual aspect. In particular:

• The reports reveal that the appellant was attracted to a girl called K. On the evening in question, he was upset when he heard that K was responding positively to another young man's advances.
• The appellant subsequently attacked a female victim.
• The appellant took off all of the victim's clothes, leaving her naked.
• The victim, when describing the attack, was quite clear the "he wanted to have sex with [her]".
• By their majority verdict of guilty of charge 1 as libelled, the jury clearly concluded that there was a sexual element in the attack.

[30] At page 23 of the report, Dr Darjee notes:

"A concern raised in this case has been in relation to an apparent escalating pattern of offending against elderly victims. The question is whether there is an underlying sexual interest in elderly victims or whether, in the context of his difficulties relating to others and difficulties gaining intimate relationships, he has targeted elderly victims as a vulnerable group, even if he does not have a specific sexual interest in elderly people. If this were the case, the index offence would be conceptualised as an opportunistic but perhaps targeted offence driven by an underlying sexual motivation. Despite the nature of the offence and his behaviour at the time of the offence, there is little in the way of clear evidence that this was what was going on. He does not have an established pattern of such offending, so this explanation is a possibility but no more than that ..."

 

(4) A high number of risk factors and relatively few protective factors
[31] At page 3 of the report, paragraph 5 of the executive summary explains:

"5. Risk factors for potential future violent or sexual offending were identified and assessed using structured risk assessment instruments. Although in this case there are a high number of risk factors and relatively few protective factors, there is not evidence of very concerning risk factors such as psychopathy or sexual deviance."

 

[32] At page 4, having classified the appellant as posing a "medium risk to the safety of the public at large", Dr Darjee went on to say:

"However, he does not fall into the low risk category as: there are a number of risk factors for further offending and [he] appears more likely to offend in the future than other offenders; it is plausible that he may go on to commit further seriously harmful offending in the future; there cannot be certainty that this was a one-off offence; there are relative few protective factors (and far more risk factors); his personality problems mean that it may be difficult to treat him and to intervene so there cannot be confidence that he will definitely respond to interventions and risk management in the future."

 

[33] At page 37, using the Risk Matrix 2000 (RM 2000), Dr Darjee records:

"What was the outcome of assessment of Ryan Liddell using RM2000?

As set out in the criminal justice social work report, he falls into a high risk group for sexual offending; in addition he also falls into a very high risk group for violent offending ..."

 

[34] At page 42, using the structured clinical risk assessment tool HCR-20, Dr Darjee notes "risk management items" as the following:

"R1. Plans lack feasibility: - It would be unfeasible to plan for management in the community at present. It is unlikely that he would stick to conditions of supervision.

 

R2. Exposure to destabilisers: - If he were placed in the community it is highly likely that he would be exposed to destabilisers such as alcohol, problems with peers and wandering at night.

 

R3. Lack of personal support: - If he were in the community he would have limited personal support. His mother and family are supportive towards him but he does not have friends or peers who are particularly supportive.

 

R4. Non-compliance with remediation attempts: - If he were in the community it is highly likely, given his very recent history, that he would be non-compliant with supervision measures.

 

R5. Stress: - If he were placed in the community it is highly likely that he would be exposed to stress. His case has received a lot of attention and he would be potentially subject to a lot of local and media attention. Also if he were placed in the community soon there may be difficulties with housing and providing him with any form of stability and support."

 

Notice of objections and evidence about the risk posed by the appellant
[35] Senior counsel for the appellant, Mr Gilchrist QC, lodged a notice of objections to the risk assessment report. At his request, a hearing on the report and notice took place on 20 and 21 March 2012. Dr Darjee gave evidence. The trial judge noted at pages 14 to 15 of his report:

"[Dr Darjee] concluded his evidence by stating that on balance he felt that an extended sentence would be appropriate as it would provide a structured framework for supervision and support. Had there been evidence of sexual deviance or psychopathy that would have demonstrated a long term risk. Dr Darjee was not cross‑examined by Mr Gilchrist. At the conclusion of the evidence I heard submissions from the Advocate Depute and Mr Gilchrist. The Advocate Depute referred me to the definition of the risk criteria in section 210E of the Criminal Procedure (Scotland) Act 1995 and to the decision of the Appeal Court in LBM v HM Advocate [2011] HCJAC 96, which held that the classification of an appellant in a risk assessment report as medium risk did not preclude the making of an order for lifelong restriction. Mr Gilchrist submitted that the evidence did not establish on a balance of probabilities that the risk criteria were met and that I should be slow to conclude that the risk criteria were met in a case where the risk was classified as medium. He submitted that an order for lifelong restriction should only be used where less restrictive alternatives would be insufficient to manage the long term risk of serious violent or sexual offending. Reference was made to extracts from the book 'Dangerous People: Policy, Prediction and Practice' at chapters 15 and 16, particularly pages 209, 212, 213 and 219 (Appendix 7). The appellant did not fit the stereotype for the subject of an order for lifelong restriction. Reference was also made to the decision in MacMillan v H M Advocate 12 January 2012, and to the details of six cases (Appendix 8) in which an order for lifelong restriction had been made where the classification had been of medium risk."

 

The sentence imposed
[36] Ultimately, on 21 March 2012, the trial judge sentenced the appellant as follows:

Charge 1: an order for lifelong restriction with a punishment part of 6 years.

Charge 4: an admonition.

[37] When sentencing the appellant, the trial judge observed inter alia:

"As you have not accepted your guilt of a sexual attack, you have shown no remorse for having committed the crime of which you were convicted.

 

In determining the appropriate sentence I must first consider whether the risk criteria are met in this case. These are that the nature of, or the circumstances of the commission, of the offence either in themselves or as part of a pattern of behaviour are such as to demonstrate that there is a likelihood that, if at liberty, you will seriously endanger the lives, or physical or psychological well-being, of members of the public at large. Having considered the nature and circumstances of the offence, which I have already described and which speak for themselves, and the terms of the psychiatric, social enquiry and risk assessment reports, as well as the oral evidence of the risk assessor, Dr Darjee, I have concluded that the risk criteria are met in your case. You have had serious behavioural problems, including aggression, from the age of about three, although that aggression did not persist throughout childhood and adolescence. You have attention deficit hyperactivity disorder and a personality disorder consisting of a number of traits, as described by Dr Darjee. You have abused alcohol, and were intoxicated at the time that you committed this crime. You have an unusual habit of wandering about the streets on your own during the night and previous incidents in which you were involved show a tendency on your part to enter private property without permission. You have breached bail conditions on more than one occasion, thus demonstrating that you cannot be trusted to comply with orders made by the court. Dr Darjee has assessed you as posing a medium risk to the safety of the public at large in accordance with the system of classification of the Risk Management Authority. This means that you are capable of causing serious harm, but in the most probable future scenarios there are sufficient protective factors to moderate that risk, that you evidence the capacity to engage with risk management strategies and may respond to treatment, but that you may become a high risk in the absence of the protective factors specified in the risk assessment report. The protective factors identified by Dr Darjee are your intelligence, your relationship with your family, your employment history, your lack of history of violent or sexual offending, your willingness to work with supervising services and your commitment to stop drinking. Your classification as medium, as opposed to high, risk to the safety of the public does not exclude the risk criteria being met. In light of the nature and circumstances of the crime which you committed and the risk factors identified, balanced against the protective factors, I am satisfied that there is indeed a likelihood that, if at liberty, you will seriously endanger the lives, or physical or psychological well‑being, of members of the public at large. I therefore make an order for lifelong restriction in respect of you on charge 1."

 

[38] In his report, the trial judge explained:

"I imposed an order for lifelong restriction on the appellant because I was satisfied, on a consideration of the evidence led at the trial, the evidence given by Dr Darjee and all the other material placed before me, that the statutory test for the making of such an order was met."

 

Appeal against sentence
[39] The appellant appeals against sentence. Grounds 3 and 4 passed the sift. In those grounds it is contended:

"3. The trial judge erred in concluding that the risk criteria were met and that accordingly an order for lifelong restriction should be made in the case of the appellant. In doing so, the trial judge:

 

i. Ignored, or failed to have adequate regard to, the uncontroverted expert evidence & conclusions of Dr Rajan Darjee, supplementing and explaining the content of the risk assessment report prepared by him;

 

ii. Ignored, or failed to have adequate regard to, (i) the guidance offered by previous decisions of the court (and brought to the attention of the court in this case) in relation to when it is appropriate to find the risk criteria to have been met in the case of an offender in respect of whom the compiler of the risk assessment has opined that he is medium (as opposed to high) risk, and (ii) the respects in which the appellant differed from those people in respect of whom the court had previously concluded that the risk criteria were met notwithstanding an expert opinion that they were medium, as opposed to high, risk;

 

iii. Ignored, or failed to have adequate regard to, the material laid before the court regarding the limited circumstances in which orders for lifelong restriction are intended to be used, and the perceived danger of 'net widening' (i.e. extending the use of such orders beyond the narrow category of offenders which the disposal was introduced in order to address);

 

iv. Ignored, or failed to have adequate regard to, the proper meaning of 'likelihood' (and the distinction between 'likelihood' and 'possibility') in relation to the question of whether the risk criteria are met, all as informed by the expert evidence and other material laid before the court.

 

4. The sentencing judge erred in fixing a punishment part of 6 years in that, having identified a notional determinate sentence of 12 years, he failed to strip out of that notional sentence the whole of any element for public protection before selecting half of the resultant period (see Petch & Foye v HMA 2011 SCCR 199)"

 

Ground 4: the punishment part
[40] At page 18 of his report, the trial judge concedes the point relating to the punishment part as follows:

"4. This is correct. The element of the sentence for public protection was 2 years, and accordingly the punishment part imposed should have been 5 years."

 

Ground 3: whether error in concluding that the risk criteria were met and that accordingly an order for lifelong restriction should be made
Submissions for the appellant
[41] Senior counsel for the appellant acknowledged that the offence was a very serious one, and that, in his submission, an order for lifelong restriction was a possible option. There was no criticism of the assessment report, or the oral evidence from its author. Although the risk was assessed as "medium", that was not a reason for not imposing an order for lifelong restriction: cf LBM v HM Advocate 2012 SLT 147; 2012 SCL 74. It was further submitted that, in dealing with the matter, the trial judge had not misdirected himself. He had applied the proper statutory test. He had considered all the information and the oral evidence of Dr Darjee, who had not been cross‑examined.

[42] Nevertheless senior counsel wished to make two points: (i) This was not a case where an order for lifelong restriction should have been imposed. (ii) Even if that was wrong, the period of six years for the punishment part was wrong (and the sentencing judge agreed with that).

[43] The circumstances in LBM could be distinguished from the present case for the following reasons:

[44] The lack of a pattern of offending: The appellant was aged 19 when he committed the offence. He did not have a pattern of offending of this nature. Reference was made to paragraph 6 of the executive summary of the risk assessment report. By contrast, in LBM there was very much a pattern of behaviour on the part of a man aged 56, who had demonstrated consistent and repeated aberrant behaviour involving young girls.

[45] There were very clear protective factors: Senior counsel referred to Dr Darjee's overall classification at page 4 of his report, and to the protective factors listed at page 21. Both Dr Darjee and the criminal justice social work report expressed the view that it was appropriate to impose an extended sentence in the appellant's case.

[46] Senior counsel accepted that it was a matter for fine judgment. Nevertheless it was submitted that in view of (a) the protective factors; (b) the lack of a pattern of similar offending; and (c) the opinion given by Dr Darjee, it was not appropriate to take the extreme position of imposing an order which would remain in place for the rest of the appellant's life. In the appellant's case, an extended sentence would be entirely appropriate: for example, an extended sentence of 15 years, 10 years being custodial. For a young man aged 21 with no established pattern of offending, such a sentence was ample to fulfil the need for protection of the public. Were the appellant to fall from grace while under supervision, the option of an order for lifelong restriction would then be available.

[47] On an esto basis, senior counsel submitted that, for the reasons given in the note of appeal, the punishment part should be 5 years instead of 6 years.

Submissions for the Crown
[48] Unusually in an appeal against sentence, the court requested some assistance from the Crown. The advocate depute provided helpful written submissions, and restricted any oral submissions to (i) assistance in calculating the punishment part; and (ii) a reference to section 210E of the Criminal Procedure (Scotland) Act 1995 with a reminder that, if the sentencing judge is satisfied that the risk criteria are met, he must impose an order for lifelong restriction: Johnston v HM Advocate 2011 SCCR 470 paragraph [14].

 

Discussion
[49] We wholly agree with the trial judge's assessment of the gravity of the crime. It was, in our view, an extremely serious offence, involving as it did the infiltration at night of the home of an elderly lady living on her own, the pretence of being a carer who had come to give her a shower, and then a brutal and persistent attack such that the victim ended up naked, terrified, highly distressed, injured, shouting and screaming "No", and desperately trying to fight off the intruder. A significant custodial sentence was indeed called for, one which, by its length (and the concomitant length of any period of licence) or by its length and nature (for example, a substantial extended sentence) would fulfil the requirements of retribution, deterrence, and protection of the public.

[50] The only question at issue therefore is whether the sentencing judge erred in concluding, on a balance of probabilities, that the risk criteria leading to an order for lifelong restriction were met.

[51] In our opinion, he did not, for the following reasons.

[52] "Likelihood" is defined in the Oxford English Dictionary as "something that is likely; a probability". When assessing in terms of section 210E whether, on a balance of probabilities, there was a likelihood that the appellant, if at liberty, would seriously endanger the lives, or physical or psychological well-being, of members of the public at large, the sentencing judge took into account all the circumstances of the case (as he was entitled to do), including the following.

 

Personality disorder and lifelong anti-social behavioural difficulties
[53] As Dr Darjee notes at page 24 of the report:

"It is difficult in this case to find evidence of a period of [the appellant's] life where he has functioned well and without getting into trouble ..."

 

Dr Darjee explains that the appellant has a personality disorder (page 36 of the report):

" ... He reached the diagnostic threshold for schizotypal personality disorder and anti-social personality disorder. He has probable schizoid and avoidant personality disorders. The schizotypal personality traits reflect his oddness, eccentricity, his strange affect, his awkwardness and social anxiety; the recklessness and impulsivity; the schizoid personality traits he displays are solitariness, lack of close friends and emotional detachment; and the avoidant personality traits that he displays are showing restraint within relationships because of fear of being shamed or ridiculed, being inhibited in new interpersonal situations because of feelings of inadequacy, viewing self as socially inept and personally unappealing or inferior to others ..."

 

Thus the appellant has misbehaved for most of his life: as a small child, an older child, an adolescent, a teenager, and as a young man. The nature and degree of misbehaviour has varied. Details are set out in paragraph [21] above. Despite at times apologising for his behaviour (page 24 of the risk assessment report) he has continued to misbehave, sometimes in quite bizarre and unacceptable ways. He has shown that he is unable or unwilling to comply with supervision, guidance and conditions imposed by his parents and by the authorities (such as the school, psychiatrists, or the court). For example, even after being charged with the serious offence relating to the complainer and having been placed on bail with curfew conditions, he breached those conditions, resulting in being convicted as libelled of charge 4 (quoted in paragraph [4] above).

 

Pattern of offending
[54] We accept that there is no history of "violent or sexual" offending (paragraphs 2 and 6 of the executive summary of the report, pages 12-13 and 23 of the report). But there was nevertheless "a pattern of offending", as set out in paragraphs [20] to [21] above. Despite the support and advice given to the appellant by his mother (a teacher), the school staff, psychiatrists, psychologists, and doctors, the appellant continued his pattern of impulsive, reckless, anti‑social behaviour, aggravated by drinking too much, wandering at night, and possibly failing to take his ADHD medication. He continued to demonstrate a propensity for disinhibited and bizarre behaviours. Dr Darjee found it difficult to explain the motive underlying the appellant's entering an elderly man's house at night and climbing into the bed in which the man was himself sleeping. Similarly Dr Darjee found it difficult to explain the motive underlying the appellant's entering an elderly lady's house at night, and attacking, beating and stripping her despite her screams and entreaties. In our view it is unnecessary for either the doctor or the sentencing judge to seek to resolve the problems of motive: the objective facts, which the sentencing judge was fully entitled to take into account, amply demonstrate the appellant's propensity for bizarre, irrational, insensitive, destructive, hurtful and harmful behaviour to members of the public at large.

 

The disturbing nature of the offence against the complainer
[55] We refer to our observations in paragraph [54] above. The sentencing judge was, in our view, fully entitled to be gravely concerned by the disturbing nature of the offence against the complainer, and, we would add, by the appellant's subsequent denials and reluctant admissions relating to certain parts of the incident (but not the whole incident) coupled with self‑serving or exculpatory qualifications, excuses, and explanations. Even without the assistance of the risk assessment report, the judge was entitled to view this offence and its lack of any immediately understandable explanation as a very worrying one. While the appellant is noted to have no history of violent or sexual offences, the fact that the appellant carried out an offence against the complainer which was both violent, and of a sexual nature, is in itself a major factor which the sentencing judge was entitled to take into account.

 

The sentencing judge heard evidence on the question of risk
[56] As noted in paragraph [35] above, the sentencing judge had the benefit not only of the risk assessment report, but also of hearing evidence from Dr Darjee himself. In such circumstances we consider that an appeal court should be very slow to conclude that the judge was not entitled, on the evidence and information before him, to form a view on a balance of probabilities that the risk criteria had been met.

 

Expert evidence is of assistance to, but not binding upon, the judge
[57] The expert evidence provided by Dr Darjee was compiled for the assistance of the court (as well as to comply with the relevant legislation and court orders referred to in paragraph [14] above). The final decision as to whether or not to impose an order for lifelong restriction was one for the trial judge alone. The fact that Dr Darjee recommended an extended sentence rather than an order for lifelong restriction is certainly one of the matters which the sentencing judge was entitled to take into account: but that recommendation was neither determinative nor binding.

 

An order for lifelong restriction may be imposed where the risk is assessed as medium
[58] Although the risk was assessed as "medium", that does not mean that the risk criteria could not be satisfied: LBM v HM Advocate 2012 SLT 147, 2012 SCL 74.

[59] In the result, having carefully considered the papers and the submissions in this appeal, we are unable to hold that the sentencing judge erred in his assessment, on a balance of probabilities, that the risk criteria set out in section 210E were met in that the offence (both in itself, and as part of a pattern of behaviour) was such as to demonstrate that there is a likelihood that the appellant, if at liberty, would seriously endanger the lives, or physical or psychological well-being, of members of the public at large. Having found that the risk criteria were met, the sentencing judge had no option but to impose a lifelong restriction order.

 

Decision
[60] For the reasons given above, we allow the appeal only to the extent that the punishment part of 6 years is quashed, and a punishment part of 5 years substituted. Quoad ultra the appeal against sentence is refused, and the order for lifelong restriction remains.