Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 102

HCA/2015/1946/XC and HCA/2015/1937/XC

Lord Justice Clerk

Lord Drummond Young

Lord Eassie

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE CLERK

in

APPEALS AGAINST SENTENCE

by

(FIRST) ANDREW KINLOCH and (SECOND) JAMES QUINN

Appellants;

against

HER MAJESTY’S ADVOCATE

Respondent;

First Appellant: Jackson QC, DR Macleod; Paterson Bell (for Douglas Wright, Kilmarnock)

Second Appellant: L Ewing, Solicitor Advocate; Turnbull McCarron, Glasgow

Respondent: A Prentice AD; the Crown Agent

21 October 2015

Introduction

[1]        On 14 November 2013, at the High Court in Edinburgh, the appellants pled guilty, under the procedure set out in section 76 of the Criminal Procedure (Scotland) Act 1995, to the following charge:

“on 12 June 2013 at HMP Edinburgh, Stenhouse Road, Edinburgh you … did assault J McL, a prisoner there, place your arm around his neck, repeatedly place knives at his throat, repeatedly present … knives at him, utter threats against him and did abduct [him], make demands for food, tobacco and an immediate transfer to another prison, confine [him] within a cell for a period of approximately five hours, repeatedly refuse to release him unless your demands were met and detain him against his will.”

[2]        This case thereafter had a lengthy procedural history.  The court appointed Dr Lisa Cameron, clinical forensic psychologist, and Dr Rajan Darjee, consultant forensic psychiatrist, to prepare Risk Assessment Reports in respect of each appellant in terms of section 210B of the 1995 Act.  In due course the RARs were produced.  Mr Quinn lodged a Note of Objections to his assessment, supported by a report from Dr Lorraine Johnstone, consultant clinical and forensic psychologist.  On 26 May 2014 a Note of Objections for Mr Kinloch and an “updated” Note of Objections for Mr Quinn were lodged.   A hearing, which included testimony from the doctors, took place on 29 and 30 September 2014 and 12 January 2015.  The case was then adjourned to allow Mr Kinloch’s report to be updated.  On 3 March 2015 Mr Kinloch sought a lengthy adjournment to allow him to be treated for adult ADHD. 

[3]        It was only on 25 May that the court proceeded to sentence.  Both appellants were made subject to Orders for Lifelong Restriction, with a punishment part, in Mr Kinloch’s case, of 2 years and 7 months and, in Mr Quinn’s case, of 3 years and 4 months. 

Circumstances of the offence
[4]        The appellants were incarcerated in Saughton Prison.  They shared a cell.  On 12 June 2013 they entered the complainer’s cell, pretending that they had something to tell him.  They closed the cell door.  Mr Quinn put a bladed weapon to the complainer’s neck while Mr Kinloch stood nearby.  They used the cell intercom to contact staff to say that they had a hostage.  They held the complainer hostage with the use of two homemade weapons.  Demands were made for Kentucky Fried Chicken, Chinese food, a pouch of tobacco and a bus to Barlinnie prison.  The motivation behind the incident was a desire on behalf of both appellants to be transferred to the West.  The incident lasted six hours, after which it was resolved peacefully. 

Personal circumstances

Mr Kinloch
[5]        Mr Kinloch was aged 25 at the time of the offence.  He had been raised as an only child in Paisley and Stewarton by his mother.  His mother had mental health problems.  She was also the subject of domestic abuse; something which Mr Kinloch saw.  He attended mainstream schooling and displayed “early oppositional defiant behaviours” at home and at school.  He was eventually diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) at the age of 8.  He was displaying features of a conduct disorder in childhood and juvenile delinquency by the age of 17.  He engaged in truancy, substance abuse and offending.  Generally he associated with an anti-social group.  He has never had any substantial period of employment.  He did have one relationship and has two children.  He has a long-standing history of drug and alcohol abuse and dependence.  He has a background involving anxiety, paranoia, suicidal and violent ideation.  He is prescribed anti-psychotic medication.  He meets the diagnostic criteria for Dissocial (Antisocial) Personality Disorder with traits of Paranoid and Emotionally Unstable Personality Disorder.  He is not psychopathic.

[6]        Dr Cameron’s RAR recorded that he had “a pervasive history of violence/aggression dating from childhood”.  He had a number of appearances before the Children’s Hearing.  His first adult conviction, in 2006, was for “culpable and reckless fire-raising”, which attracted a Community Service Order.  Shortly after that, he was put on probation for a year for a breach of the peace.  In the latter part of the year, and into 2007, sentence was deferred on several occasions in respect of offences of dishonesty (fraud), breach of bail conditions, and violence (assault with a bottle).  Short custodial sentences followed.

[7]        In June 2007 Mr Kinloch was sentenced to 12 months detention for assault and robbery.  The next highlight was in January 2010, when he was imprisoned for 15 months for possession of an axe.  There were further sentences for summary matters, including public order offences.  In 2011 he acquired 3 statutory breach of the peace convictions, which attracted sentences of 4, 6 and 9 months.  Finally, in 2013 he was sentenced to 33 months with a Supervised Release Order for the assault and robbery of children.  The RAR comments that Mr Kinloch has had no significant periods of desistence from offending and his record includes a “pervasive propensity towards non-compliance in terms of supervision requirements”.  He has breached bail, probation and CSOs.  This is a critical feature in the RAR.

[8]        The “Summary Formulation” in the RAR highlighted these factors, noting that Mr Kinloch has a:

“propensity to utilise threats and coercion alongside physical violence in order to achieve his aims.  His actions are underpinned by violent ideation and intent, use of aggression in order to maintain his self-esteem and feelings of control and assessed Personality Disorder/psychopathic traits that affect his attitudes, perceptions and behaviours.”

Overall, the RAR concluded that Mr Kinloch fell within the “high-risk” category.  He was not likely to be amenable to change.  Treatment was not likely “to mitigate the need for supervision or close monitoring over the long-term and whilst at liberty”.

[9]        The RAR had suggested a psychiatric assessment. The sentencing judge obtained a report from Dr John Crichton, Consultant Psychiatrist, dated 22 April 2014.  He had been asked whether Mr Kinloch was suffering not just from a personality disorder but a paranoid illness, such as schizophrenia.  Dr Crichton did not consider that to be likely. 

[10]      Mr Kinloch produced a report from Dr CR Steer, consultant paediatrician, dated 31 December 2014.  Dr Steer had seen Mr Kinloch in his childhood and had recommended Ritalin.  He had last seen him in 2005, when Mr Kinloch had been engaging in alcohol binges and the abuse of cannabis and ecstasy, amongst other pursuits.  A question arose as to whether Mr Kinloch was suffering from adult ADHD.  Dr Cameron was asked whether that might alter her view on risk.  She said that it would not.  Ultimately, the sentencing judge heard evidence on the matter from Drs Cameron, Crichton and Premal Shah, an expert in adult ADHD.  Dr Shah, in a report dated 28 February 2015, stated that Mr Kinloch did have features of adult ADHD, as well as the secondary effects of substance misuse and antisocial traits.  ADHD treatment “may attenuate” his risk profile by reducing the core symptoms of ADHD and potentially ameliorating his substance misuse and some aspects of his antisocial behaviour.

Mr Quinn

[11]      Mr Quinn was aged 28 at the time of the offence.  He had grown up in Glasgow.  The RAR reported that he too had been the subject of, and had perpetrated, violent and anti-social conduct as a child and adolescent.  He had been in care in his teens and had not developed any secure attachment to any parental figure.  His parents had separated when he was 9 or 10.  His father had been heavily engaged in crime.  His mother suffered from depression and was prone to self-harm.   His primary education involved him in fighting and fire raising.  He did achieve several standard grades at secondary.  He has never had permanent accommodation.  He has no history of employment.  He has abused alcohol and drugs.  He has had one long term relationship and has two sons. 

[12]      Mr Quinn’s criminal record is worse than that of Mr Kinloch. It started in 2003 with the possession of a knife, for which he was fined.  In the same year he was, amongst other things, detained for 3 months for assault.  A further period of 3 months was imposed for another assault in the following year.  He was put on probation for 18 months, but soon breached that and was the subject to further periods of detention.  In November 2004 he was sentenced to 18 months for assault to severe injury and permanent disfigurement by stabbing his mother’s partner.  Further summary penalties followed for offences of violence, public disorder and dishonesty.  In November 2008, he was sentenced to 4 years for an assault to severe injury on his infant child, with a further 4 year extended period of supervision.  In 2010 he received a further 9 months for another breach of the peace.  In August 2013 a sentence of 16 months was imposed for possession of an offensive piece of wood.

[13]      The RAR reported Mr Quinn as having “a personality disorder characterised by persistent and pervasive self centredness, lack of concern for others, impulsivity, aggressive and antisocial attitudes, poor anger control, lack of trust and stubbornness”.  The assessor, Dr Darjee, considered that he posed an ongoing risk of violence including seriously harmful violence.  He was assessed as falling into the high risk category because of the many risk factors for violence and the lack of protective factors. Treatment would be very difficult.

[14]      Dr Johnstone provided a commentary on the RAR in her report of 3 May 2014.  This criticised what were said to be limitations in the data supporting the assessment and the lack of analysis and explanation.  A number of shortcomings were identified by Dr Johnstone in the RAR which, in her view, failed to meet the RMA guidelines.  She concluded that there were significant omissions in the evidence base.  She noted a lack of information from sources other than the court proceedings in which the RAR had been instructed.  For example, while Dr Darjee had listed the indictment, Crown Narrative, Notice of Previous Convictions, Judge’s Report, Prison Social Work Records and Prison Records, he had omitted to access additional social work records, and GP or medical records.  Dr Darjee had not had access to historical records such as those held by Education, Children and Families and/or Youth Justice Social Work Services, the Scottish Children’s Reporters Administration, and the Children’s Homes where Mr Quinn had resided. 

[15]      Dr Darjee provided a supplementary report (undated) in which he responded to Dr Johnstone’s critique.  He noted that he only interviewed Mr Quinn for five hours, because Mr Quinn had refused further interviews.  Mr Quinn had refused to allow him to interview his family members.  Although he did not specifically access police, GP or child records, Dr Darjee explained that he did have access to comprehensive social work and prison records covering Mr Quinn’s teenage years onwards.  Despite the acknowledged omissions, Dr Darjee considered that he had had sufficient information to assess risk.

Submissions
Mr Kinloch
[16]      It was submitted that the judge had erred in determining that the risk criteria had been met.  The offence had not been part of a pattern of offending.  The motivation behind the offence was that the appellant had requested to be moved to Barlinnie in order that his disabled mother could visit him in custody.  The appellant had been frustrated when his attempts to be moved had been unsuccessful.  He had committed the offence as an act of desperation. 

[17]      Mr Kinloch had never been supervised in the community, with the threat of an immediate return to custody should he re-offend.  He had never been a long-term prisoner.  He had never been subject of an extended sentence.  An extended sentence would have been an appropriate disposal.  The appellant’s psychological profile was not exceptional or rare vis-à-vis the general prison population (Ferguson v HM Advocate 2014 SCCR 244).  At the time of the offence the appellant had been suffering from undiagnosed Adult ADHD and had not been receiving any medication for his condition.

[18]      The sentencing judge had not attached sufficient weight to the personal circumstances of the appellant.  He was a young immature man with a recognised medical condition, which was potentially treatable with medication.  Dr Cameron had testified that the appellant was a “borderline” high risk, even before she became aware that the appellant suffered from adult ADHD.  The sentence was not proportionate.  Dr Cameron was not able to say that the appellant would require supervision for the rest of his life.

[19]      If the risk criteria were met; the imposition of an OLR was premature. The appellant’s ADHD was potentially treatable with medication.  There was a possibility that, if the appellant received such medication, his level of risk could be significantly reduced.

Mr Quinn

[20]      It was submitted that, in the light of the evidence of Dr Johnstone, the sentencing judge had not been entitled to conclude that the RAR had been prepared in accordance with the standards and guidelines.  The sentencing judge ought to have provided reasons for rejecting the criticisms made by Dr Johnstone and preferring the evidence of Dr Darjee.  Sentencing should be contingent upon the outcome of a professional RAR which complied with the RMA’s standards framework (Ferguson v HMA (supra) at para 10).  The appellant’s expert had identified a number of failures to follow the RMA guidelines.  Those criticisms included the failure adequately to reference the evidence base for the report. 

[21]      In short, the categorisation of the appellant as a high risk was not supported by reference to the relevant element of the definition.  The key issue of serious endangerment to the public at large had not been addressed.

Sentencing judge’s report
[22]      The sentencing judge concluded that, even if Mr Kinloch had suffered from some form of treatable adult ADHD (upon which he reached no firm conclusion), that could not account for his planned and instrumental violence.  The ADHD was but one of the risk factors applying to Mr Kinloch.  He accepted the evidence of Dr Cameron that this would not reduce the risk to the public below “high”.  He accepted Dr Cameron’s assessment in that regard.  He stated that, had Mr Kinloch been sentenced to a fixed period after trial, the period of imprisonment would have been 8 years.  Since he had pled guilty at an early stage, he would have discounted that period to 5 years 4 months, thus entitling Mr Kinloch to apply for parole after 2 years and 7 months (this should have been 2 years 8 months).

[23]      In Mr Quinn’s case, the sentencing judge did not accept the criticisms of Dr Darjee’s report.  He considered them to be matters of style rather than substance.  He considered that Dr Darjee had had sufficient information to make a risk assessment and that that assessment had not been flawed.  The judge would, in light of Mr Quinn’s criminal record and this offence, have been “greatly surprised” if he had been assessed at anything other than high risk.  Nevertheless, the sentencing judge agreed with the overall assessment of high risk.  In view in particular of his record, the judge would have imposed a determinate sentence of 10 years for the offence, discounted to 6 years 8 months for the early plea.  He therefore fixed the punishment part at 3 years and 4 months. 

Decision

[24]      If an individual has been convicted of a sexual or violent offence, the court “if it considers that the risk criteria may be met, shall make… a ‘risk assessment order’…”  (s 210B(2)).  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.” (s 210E).  The threshold is whether there is a “likelihood” of “serious” endangerment (Ferguson v HMA 2014 SCCR 244 at 255), but that must stem from the nature or circumstances of the commission of the offences or from a pattern of behaviour of which the offence forms a part.

[25]      The consequent RAR must be considered by the sentencing judge.  The assessor must include in the RAR his opinion on whether the risk, having regard to the standards and guidelines issued by the RMA, is high, medium or low (s 210C(3)).  If the judge is satisfied, “having regard to any RAR … and any other information before it, that on a balance of probabilities the risk criteria are met”, he must make an OLR (s 210F)

[26]      The RMA’s “Standards and Guidelines for Risk Assessment” (updated 1 March 2013) provide directions to an assessor on the method and format of the RAR.  The assessor must review a substantial range of documents about the offender’s social, criminal and medical context in order to inform his assessment.  All documents cited should be fully referenced in the Report Evidence Base section at the end of the report.  The assessor should set out his views on the reliability of the various items of evidence.

[27]      The language of the legislation is clear in requiring not only that there be a serious risk posed by the offender but also a link between the offence and that risk.   If there is no such link, the risk criteria cannot be satisfied, irrespective of the general level of risk posed by the offender in terms of the RAR.  In these appeals, there is no sufficient link between the offence and the risk.  The offence took place during the appellants’ incarceration.  The circumstances were specific to the appellants’ circumstances at the time of the offence, namely their incarceration.  The incident, whilst serious in terms of prison discipline, involved no injury nor any attempt to injure the hostage taken.  Looked at in isolation, an incident of this limited nature cannot be said to demonstrate a likelihood that either appellant would seriously endanger the lives, or physical or psychological well-being, of members of the public at large. 

[28]      The risks of repeat offending by these appellants do not flow from the offence, but from their general recidivist tendencies.  The problem with this, in terms of the statutory criteria, is that, whilst both appellants have significant records, it is not possible to fit this offence into a pattern of behaviour within the scope of the risk criteria.  The offence is not similar to those in the appellants’ records, other than in the most general of terms.  It may be that Mr Kinloch has accumulated a record for possessing weapons, but he appears to have only one limited conviction for using one; that being dealt with by a short custodial sentence in 2007.  Mr Quinn does have a serious record involving violence, but it is limited and linked to domestic circumstances.  It is not linked to the incident in prison.  In the circumstances, the risk criteria are not satisfied and the statutory test for the imposition of an OLR are not met.

[29]      Accordingly, the Orders of Lifelong Restriction will be quashed.  Having now obtained Criminal Justice Social Work Reports, the court will substitute extended sentences.  In the case of Mr Kinloch, this will be an extended period of 6 years, with a custodial term of 4 years and an extension period of 2 years.  In the case of Mr Quinn, it will be 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.  Each sentence reflects a one-third discount for the early plea.

[30]      In these circumstances, it is not necessary to explore in detail the issue of whether Dr Darjee’s RAR complied substantially with the RMA standards and guidelines.  Suffice it to say, whilst recognising that Dr Darjee might justifiably have considered that he had ingathered sufficient information upon which to base an accurate risk assessment, the absence of any reference to Mr Quinn’s education, social work and medical records certainly calls into question the issue of whether the statutory requirements for a RAR were met.