Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 84

HCA/2015/2279/XC

Lord Justice General

Lady Paton

Lord Menzies

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST SENTENCE

by

ANDREW BYRNE

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Dean of Faculty (Jackson QC), Mackintosh; John Pryde & Co

Respondent: I McSporran AD; the Crown Agent

9 September 2016

[1]        On 11 February 2010, at the High Court in Glasgow, the appellant pled guilty, in terms of section 76 of the Criminal Procedure (Scotland) Act 1995, to 32 charges of a sexual nature, involving about 19 young persons, both male and female.  These were: (1) 11 charges of making arrangements to meet persons under 16, for the purposes of unlawful sexual activity (cc 1, 3, 5, 7, 9, 12, 16, 18, 22, 24 and 25), contrary to section 1 of the Protection of Children and Prevention of Sexual Offences (Scotland) Act 2005; (2) 4 charges of inducing various children to undress, expose themselves, engage in sexual activity and send images via a webcam (cc 2, 11, 17 and 19), contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995; (3) 3 charges of taking, distributing or showing indecent photographs of children (cc 4, 15, 31 and 32) and 1 charge of possession of such photographs (c 30), contrary to sections 52 and 52A of the Civil Government (Scotland) Act 1982.  There were photographs at all levels of the Copine scale, including 8 at level 5 and 53 at level 4; (4) 4 charges of having unlawful sexual intercourse with a girl under 16 (cc 6, 8, 10 and 13), contrary to section 5 of the 1995 Act; (5) 5 charges of lewd practices by persuading boys and girls to send images of themselves engaging in sexual practices, or sending them such images of himself (cc 14, 23, 26, 28 and 29); and (6) 3 charges of procuring the commission of homosexual acts (c 20, 21 and 27) contrary to section 13 of the 1995 Act.

[2]        The sentencing judge called for a Criminal Justice Social Work Report which, when the case called again on 31 March 2010, revealed that the appellant fell into the very high risk category of re-offending and posed a high risk of causing significant physical and emotional harm.  The defence sought time to obtain a report from a psychologist.  Having considered his report, on 24 April 2010 the judge made a Risk Assessment Order.  The resultant RA Report from Colin Howard, concluded:

“2.3     ... that, if at liberty, [the appellant] would pose a high risk of causing serious harm to the safety of the public at large.  The most likely future scenario involves serious sexual assault whereby he would contact, use psychological and/or physical coercion on a male or female child and subject them to a sexually violent assault (rape and/or sodomy).  The type of harm experienced by a victim of such an assault might be such that it could be difficult or impossible for them to make a full recovery ...  There is a possibility that his behaviour might escalate and involve lethal violence ... 

2.4       [The appellant] presents with many of the known risk factors for sexually violent environment recidivism ...  He has several protective factors ...  The main priorities for risk management should be the provision of offence specific work to address his deviant sexual fantasies, sexual preoccupation and deviant sexual interest in children; and prevent him having access to potential victims and opportunities to reoffend...”.

[3]        On 21 July 2010, the sentencing judge stated that he was satisfied that the risk criteria were met.  He therefore imposed an Order for Lifelong Restriction in terms of section 210F of the Criminal Procedure (Scotland) Act 1995.  The punishment part was 6 years, which was backdated to 2009 and which has therefore now expired. 

[4]        A Note of Appeal was presented on 17 July 2015, by which time, according to his report, the sentencing judge had “no reliable memory of imposing this sentence or of his thought processes in reaching the view that he did”.  He stated that it was plain from the RAR that the criteria in section 210E of the 1995 Act had been met.  The Note states that it appeared that the judge felt compelled to make the OLR because of the terms of the RAR, when he was required to be satisfied, not that there was a chance that serious endangerment would occur, but that it was more likely than not that this would happen.  The criticism was that the RAR did not assess the risk of a point in the future when, but for the OLR, the appellant would have been at liberty and not under supervision.

[5]        On 30 November 2015, this court ordered a further RAR, this time from Professor David Cooke.  This became available on 3 August 2016.  It assessed the appellant’s risk as “high”; that is to say:

“The nature, seriousness and pattern of this individual’s behaviour indicates an enduring propensity to seriously endanger the lives, or physical or psychological well being of the public at large.  The individual has problematic, persistent, pervasive characteristics that are relevant to risk and

not likely to be amenable to change

            the potential for change with time and/or treatment is significantly limited

Without changes in these characteristics the individual will continue to cause a risk of serious harm. 

Furthermore,

there are few, if any, protective factors to counterbalance those characteristics

concerted long term measures are indicated to manage the risk ...

the nature of the difficulties ... are such that treatment is unlikely to mitigate the need for long term monitoring and supervision; and

in the absence of such measures, this individual is likely to continue to seriously endanger the lives, or physical or psychological well being of the public at large.”

Prof Cooke explains in his Report that:

“[The appellant] has been convicted of a large number of diverse sexual offences.  [He] is subject to a significant number of risk factors for future sexual violence.  The risk factors include, but are not limited to, the following: diverse and chronic sexual violence; psychological coercion; extreme minimisation of violence; attitudes that support sexual violence; problems with substance abuse; and problems with intimate and non-intimate relationships.  There are a number of protective factors that can be identified, namely, good intellectual functioning, appropriate attitudes to authority, reasonable life goals and support from an aunt. 

There are no reliable and effective treatments for his sexual offending.  The presence of a paedophilic disorder indicates that he will have an enduring propensity to seriously endanger the wellbeing of the public at large.  With appropriate monitoring and supervision there is the potential that his risk could be managed in the community.”

[6]        In submissions, under reference to Ferguson v HM Advocate 2014 SCCR 244 (at paras [101 and 102] and [129 and 130]), it was submitted that the RAR did not directly address the likelihood of danger at the point when the appellant would otherwise be released, say in several years time under rigorous supervision with which the appellant would be likely to comply.  Focus was, in particular, on aspects of Prof Cooke’s report, in which he addresses the likely compliance of such a regime by the appellant.  In particular, Prof Cooke referred to a “best case scenario” whereby the appellant would:

“engage with services, frankly discuss the process driving his offending, engage in appropriate treatment, supervision or monitoring and demonstrate meaningful psychological and behavioural change”.

He considered that that was a possible scenario, if appropriate services were put in place. 

[7]        It was submitted that, having regard to the various protective orders that might be made post-release, an OLR was not required.  In particular, reference was made, first, to the licence conditions which could be attached upon release from an extended sentence and, in particular, the ability of the court to impose conditions regulating the use of the internet (Connell v Dunn 2014 SCCR 513).  Secondly, there were the notification requirements under the sex offenders’ regime (Sexual Offences Act 2003, Part II).  Thirdly, there were Multi-Agency Public Protection Arrangements (MAPPA), which could be made to manage the particular risk at the end of an extended sentence.  Fourthly, there was the ability of the Chief Constable to apply to the sheriff for a Sexual Offences Prevention Order (2003 Act, s 104), once the extended sentence had been completed (A v Murphy 2014 SCL 784). 

[8]        In Ferguson v HM Advocate 2014 SCCR 244 it was stated (LJC (Carloway) at para [99]) that the time for assessing the likelihood of serious endangerment can only be at the point of sentencing, but that the assessment looked forward to the point at which the offender would, but for the OLR, be at liberty.  Any assessment would not require a precise calculation of when the offender would have been likely to have been released but for the OLR, or an accurate prediction of his state at that time.  The existing risk required to be assessed by the court, which could then decide whether any custodial or post-release regime would have any material impact on that risk.  If the court considered that no material reduction would occur, it would be entitled to find that any likelihood of serious endangerment at the time of sentencing would be the same at the point of release.  In carrying out this exercise, the court could take into account what might be achieved in custody and as a result of post-release supervision.  However, it had to be borne in mind that rehabilitation programmes could not be forced upon an offender and any period of post-release supervision would inevitably expire.  If serious endangerment is likely at any point post-release, an OLR must be made.

[9]        Taking into account the conclusions of Prof Cooke, and having regard to all the circumstances, notably the manifestation of the risk which this appellant poses, there is no doubt, on the information presented to the court, that he will continue indefinitely to present a risk of serious public endangerment, notwithstanding the existence of a range of measures aimed at reducing that risk.  It is true that Prof Cooke was persuaded that, at present, the appellant would be likely to comply with a rigorous supervision regime, but that was in the context of the appellant in a prison setting.  The fact remains that, as Prof Cooke has reported, the appellant will continue to have an enduring propensity to seriously endanger the wellbeing of the public at large.  In these circumstances, this court must refuse the appeal.