British
and Irish Legal Information Institute
Freely Available British and Irish Public Legal Information
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> McCUAIG, CROWN SENTENCE APPEAL BY HER MAJESTY'S ADVOCATE AGAINST SEAN McCUAIG [2018] ScotHC HCJAC_55 (21 September 2018)
URL: http://www.bailii.org/scot/cases/ScotHC/2018/[2018]_HCJAC_55.html
Cite as: [2018] HCJAC 55, [2018] ScotHC HCJAC_55
[New search] [Printable PDF version] [Help]
Page 1 ⇓
APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton
Lord Malcolm
Lord Turnbull
[2018] HCJAC 55
HCA/2018/000240/XC
OPINION OF THE COURT
delivered by LORD TURNBULL
in
CROWN SENTENCE APPEAL
by
HER MAJESTY’S ADVOCATE
Appellant
against
SEAN McCUAIG
Respondent
Appellant: McSporran QC, AD;
Respondent: Lenahan Advocate, Anthony Mahon Limited, Solicitors
21 September 2018
[1] This is an appeal by the Lord Advocate under section 108 of the Criminal Procedure
(Scotland) Act 1995 against the sentence imposed on the respondent Sean McCuaig by the
sheriff at Glasgow on 12 April 2018.
[2] The respondent, a 22 year old first offender, appeared on an indictment libelling
35 charges. At a first diet on 20 February 2018 his pleas of guilty to 20 of these charges were
Page 2 ⇓
2
accepted. His pleas of not guilty to the remaining charges were accepted. The offending
conduct occurred between January 2016 and July 2017, when the respondent was aged 20 and
21 years.
The Charges
[3] Of the charges to which pleas of guilty were tendered and accepted, charge (33) was a
charge of taking or permitting to be taken or making indecent photographs of children,
charge (34) was a charge of distributing or showing indecent photographs of children and
charge (35) was a charge of possessing extreme pornographic images.
[4] The remaining charges to which pleas of guilty were tendered concerned
communications which the respondent sent to the nine young female complainers. Having
set up a number of Facebook profiles in pseudonym names the respondent contacted the
complainers using these user names.
[5] The respondent sent pseudo-images to eight of the complainers, who were aged
between 12 and 15 years, which comprised a naked female body with the head of the
respective complainer superimposed on the image. He then threatened each that he would
post the image on the internet if the complainer failed to send him a sexual image of
themselves. The remaining complainer (charge 11) was not sent an image but did receive a
threat of the same nature as the others. Three of the complainers succumbed to the threats
which the respondent made.
[6] The complainer EC, aged 15, begged the respondent not to share the image which he
had sent her and sent him a picture showing her bare legs. The respondent pressed her for
more photographs. She continually asked him to stop and, after persuasion, sent a picture of
Page 3 ⇓
3
herself in shorts showing her torso. She then pleaded with him to leave her alone. She
repeatedly told him that she would kill herself if he posted pictures of her.
[7] The complainer AH, aged 13, received messages from the respondent saying that she
had to send him a photograph of her or he would come and find her. He said he knew
where she lived and threatened her family. Out of concern as to what would happen the
complainer sent a photograph of herself dressed in her bra and shorts and then sent further
photographs, one of which was a full body photograph and another showing the bottom half
of her body including her vagina. She told the respondent to leave her alone. She also sent a
number of moving images in which it was obvious that she was a reluctant participant and
appeared to be crying.
[8] The complainer KMcG, aged 13, received messages from the respondent threatening
that if she did not send nude photographs of herself her family would be at harm. Feeling
that she had no other choice this complainer sent three photographs of her naked breasts to
the respondent.
[9] The respondent also sent a photograph of the complainer KMcG’s breasts to her
friend the complainer AH. He then sent a photograph of AH dressed in her underwear to
KMcG.
[10] In relation to one further complainer, TK aged 12, the respondent posted an image of
a female standing in a bathroom with her face superimposed onto it on her Facebook page.
Along with the image he attached a note stating “she’s exposed noo, she sends dirty nudes to
everybody.” This was not an indecent image but members of the complainer’s family and
some people at her school saw the image.
[11] Certain of the complainers informed their parents or teachers and in June 2017, acting
on information relating to possession of indecent images, police officers attended at the
Page 4 ⇓
4
respondent’s home. Forensic interrogation of computer equipment recovered established his
responsibility for the various offences concerning the nine complainers. In addition, 2653
indecent still images of children were recovered, 336 of which were at category A, along with
65 moving images, 54 of which were at category A. Five further images were identified as
depicting females being raped and fell to be classified as extreme pornography in
contravention of section 51A of the Civic Government (Scotland) Act 2010. Examination also
disclosed that the respondent had shared indecent images of the complainer AH with other
Facebook users.
[12] Also recovered from the respondent’s computer was a text document in which he
had described a range of sexual scenarios created by him in relation to a number of teenage
females, including two of the complainers. The scenarios involved abduction, rape and
physical violence.
[13] Having heard the narrative of the circumstances the sheriff called for a Criminal
Justice Social Work Report and in addition called for two Forensic Clinical Psychology
Reports, one prepared by Dr Lorraine Johnstone, the other by Dr Gary MacPherson. Having
considered the content of these reports, and having heard the respondent’s solicitor in
mitigation, the sheriff imposed an extended sentence of 6 years’ imprisonment comprising a
custodial period of 3 years and an extension period of 3 years. The respondent was made
subject to the notification requirements provided for by the Sexual Offences Act of 2003 for
an indefinite period.
Page 5 ⇓
5
The Reports
The CJSWR
[14] At pages 3 and 4 of his report the author of the Criminal Justice Social Work Report
makes certain introductory comments concerning the scope of his risk assessment. He
identified certain limitations in his use of the Stable 2007 risk assessment tool, he noted that
he had not been provided with a narration of the facts and did not have access to the written
Forensic Report compiled by Police Scotland Cyber Crime Unit. He noted that these factors
imposed some limitations on the current risk assessment which he was able to undertake.
[15] Despite these limitations he offered certain conclusions in relation to risk assessment.
At page 10 he noted that no input had as yet been formulated or commenced to intervene
and manage risk of similar behaviour on the part of the appellant in the future. He had in
mind that this would include the control and oversight of the respondent’s use of
technology and the Internet. He observed:
“Until this input is carried out Mr McCuaig should be considered as high-risk of
further similar sexualised offending.”
Having carried out an assessment using the Risk Matrix 2002 tool, the Stable 2007 tool and
the Moving Forward Making Changes decision tree framework, his combined assessment
was that:
“These taken together suggest that Mr McCuaig be considered as high-risk of
sexualised offending requiring a very high level of treatment input, external
supervision and monitoring.”
[16] Under the review of relevant sentencing options the author noted that the respondent
was considered to be suitable for, and highly in need of, sex offender treatment. He noted
that the programme is offered both in community and custody environments and that the
respondent would likely benefit from initial participation in the custody setting to develop a
Page 6 ⇓
6
degree of safe planning and accountability for behaviour on eventual release whilst subject
to post-release supervision. He recommended that the court consider imposing an extended
sentence but also noted that given the current risk assessment and need for public protection
the court may wish to consider referring the matter to the High Court.
Dr MacPherson’s report
[17] Dr MacPherson explained that he adopted the “structured clinical approach” to form a
view on the respondent’s risk of sex offence recidivism and used an evidence-based measure
recognised in the professional and peer-reviewed literature as having utility in the decision-
making process for an individual’s risk of sex offence recidivism. He went on to explain that
he used the Sexual Violence Risk-20 (SVR-20) guide to inform his clinical judgement. He made
the following observation about this guide:
“Unlike other available risk assessment schedules the SVR-20 has been tested with
sex offenders in Scotland to predict escalation in severity of sex offending.”
[18] As part of his risk assessment exercise Dr MacPherson commented that it is
important to consider the presence of behaviour consistent with psychopathy. He formed
the view that the respondent did not fulfil sufficient criteria for this condition.
[19] Under the heading of “Sexual Deviation”, Dr MacPherson noted that the respondent
has an entrenched, highly unusual sexual interest in rape and violence towards young
females. As had the author of the CJSWR, Dr MacPherson noted that the respondent
demonstrated a poor level of understanding vis-a-vis the wider implications of his
behaviour. In relation to intervention work, Dr MacPherson noted that the respondent
would benefit from offence focused intervention to reduce his risk and he noted that the
respondent would complete the Moving Forward – Making Changes (Sex Offender)
programme.
Page 7 ⇓
7
[20] In his conclusions at page 18 of his report Dr MacPherson expressed the opinion that
the respondent:
“… presents a high risk of analogous offending at this time without any further
supervision or intervention.”
His further conclusions at page 19 included the following:
“There remains debate and gaps in professional knowledge with respect to whether
offenders who use the Internet share most or all of the characteristics of other types
of sex offenders, although the emerging evidence suggests that only a minority of
Internet sex offenders progress towards contact sex offending. Sean McCuaig should
engage in offence focused work to understand the antecedents to his offending and
develop an awareness of how to prevent a situation where he may be at risk of
reoffending. He would be a candidate for the Moving Forward – Making Changes
Programme [the Sex Offender Treatment Programme] for sex offenders which runs
within the prison service estate and in the community.”
[21] Dr MacPherson drew his report to a finish by stating that he was not confident that
significant changes could be made to such an entrenched unusual and deviant sexual
interest in extreme child abuse and recommended that the respondent be monitored and
supervised on a statutory basis in the community. He went on to give examples of how this
form of management could take place. He had in mind face-to-face meetings and
unannounced visits to his home, monitoring and management of any use of computer
equipment et cetera, that he be prohibited from engaging in any work with children or
vulnerable groups and that his behaviour should be re-assessed and risk assessed at
intervals while supervised in the community. At no stage did Dr MacPherson suggest that
the respondent posed the sort of risk which would require the imposition of an Order for
Lifelong Restriction, or that the risk criteria specified in section 210E of the Criminal
Procedure (Scotland) Act 1995 might be present.
Page 8 ⇓
8
Dr Johnstone’s report
[21] Dr Johnstone set out in her report the content of the narrative of the case with which
she had been provided. In her initial offence analysis she noted that the respondent’s
offences reflect a persistent, repeated, dense and serious pattern of cyberstalking,
harassment and sexual offending during which he communicated to and about victims,
where he intimidated and threatened his victims, where he has shown a callous and reckless
disregard for their emotional and physical well-being and where there has been a pattern of
escalating seriousness. She also noted that he had offered one of his victims the opportunity
to meet with him at a specified location and had detailed a sexual interest across a range of
different paraphilias. Dr Johnstone used the term stalking to describe the appellant’s
unwanted and repeated communication.
[22] Dr Johnstone discussed the content of the text document which had been recovered
from his computer with the respondent. She noted that he informed her that “one thought
led to another and I was worried it would escalate”. He also explained to her that he could
feel the progression in his offending itself. She noted that the content of this document was
disturbing and included graphic accounts of how the respondent had fantasised about
serious sexual violence against child victims. She also noted that in his discussion with her
he explained that he wished to understand and manage his difficulties. He admitted that his
motivations were sexual and told her that he did not have any real interest in perpetrating
serious physical violence.
[23] In carrying out her risk assessment Dr Johnstone also undertook the structured
professional judgement approach which, she explained, produces a highly individualised
evaluation. She utilised a different protocol to guide her assessment from that used by
Dr MacPherson to identify the respondent’s sexual violence risk and she used what she
Page 9 ⇓
9
referred to as the Stalking Assessment Manual to guide her assessment of his stalking
assessment risk.
As Dr MacPherson had done, Dr Johnstone included a passage in her report concerning the
question of any link between the use of online images and contact offending. Having
referred to research indicating a similar opinion to that expressed by Dr MacPherson she
went on to say the following:
“However, when it comes to the individual case, it would be incorrect and
misleading to generalise from this finding. Whilst prospective research would
suggest that, in general terms, most people who are found in possession of indecent
images do not appear to have progressed onto contact offences – some people do.
Furthermore, retrospective research has shown that those who do engage in contact
sexual offending often have engaged in Internet offending.”
She went on to say that against that background it was accepted that any assessment of risk
at the individual level required a detailed assessment of a range of relevant variables and a
clear formulation of what is driving the offending.
[24] Having considered the presence or otherwise of relevant risk factors and undertaken
her clinical assessment, Dr Johnstone expressed certain opinions:
She considered that the respondent posed a high risk of repeat stalking
behaviour.
Based on the available information she could not exclude an escalation scenario
The respondent’s risk factors if unchanged and unmanaged would place him at
high risk of using the Internet for the purposes of having indecent images of
children and adolescents.
The respondent may present a risk of a twist scenario, in other words sexual
interest in children with whom he already has access, although she noted that
Page 10 ⇓
10
this would require him to use other behaviours such as grooming leading to
coercion.
[25] In light of her findings Dr Johnstone identified a number of risk management
interventions which included:
Further assessment to aid ongoing risk management
Monitoring by police or other surveillance when the respondent was in the
community in particular to control the use of computers and his proximity and
access to any of his victims or young females.
When in the community, supervision and control such as to require restrictions
on his activity movement, association and communications.
Treatment such as might improve deficits in his psychological functioning via
the provision of rehabilitative services.
[27] Having set out all of the information known to her, and having identified the various
risk factors present, her assessment of those and their implications, Dr Johnstone set out her
overall summary and conclusions at paragraph 50 of her report. She concluded with the
following expression of opinion:
“An analysis of known risk factors for stalking and sexual violence has revealed that
Mr McCuaig presents with a high number and diverse range of risk factors relevant
to both stalking and sexual violence recidivism. The nature and configuration of his
risk factors means that, if currently at liberty, he would pose a risk of serious harm to
female members of the general public at large if he were to perpetuate a repeat
scenario or if his offending were to escalate and he acted on other aspects of his
sexual fantasies. In the absence of any significant change or robust management of his risk,
it is likely that Mr McCuaig will continue to pose a risk in the long term. In order to
manage him, he will require a complex range of multi-agency interventions akin to
those required for offenders who are being considered for MAPA Level 3 or an
Order for Lifelong Restriction.”
Page 11 ⇓
11
Submissions
Crown
[28] In opening his submissions the advocate depute intimated that the appeal was to be
presented on a more restricted basis than had been identified in the Note of Appeal. The
contention now advanced by the Crown was that in imposing an extended sentence the
sheriff selected a disposal which failed properly to provide for rehabilitation, risk
assessment and risk management and as such fell to be seen as an unduly lenient sentence.
The Crown’s contention was that the sheriff ought to have concluded that the risk criteria
specified in section 210E of the Criminal Procedure (Scotland) Act 1995 may have been met
in the respondent’s case and ought to have remitted the case to the High Court. That would
have given a judge of that court an opportunity to make a risk assessment order in terms of
section 210B of the 1995 Act and then, if appropriate, an Order for Lifelong Restriction as
provided for by section 210F. Whilst it was recognised that the sheriff stated in her report
that she did not consider that the respondent may meet the risk criteria, the submission was
that she was clearly wrong in this regard. The advocate depute frankly recognised that the
submission being advanced was a most unusual one.
[29] In setting out the Crown’s argument the advocate depute explained that the
foundation of the appeal could be found in the passage from Dr Johnstone’s report quoted at
paragraph [27] above. He submitted that neither Dr MacPherson nor Dr Johnstone had
identified any measure which they considered would be effective in managing the
respondent’s risk. In light of the absence of any such reassurance it was clear that the
sheriff’s view could not be supported.
[30] In the Crown’s written submissions emphasis was placed on the contention that the
sheriff had placed undue weight on the risk of further analogous noncontact offending,
Page 12 ⇓
12
rather than taking cognizance of the escalating behaviour in its totality. It was said that the
imposition of an extended sentence failed to provide an adequate degree of protection to the
public against “the high risk of serious sexual offending posed by the respondent”.
Respondent
[31] On behalf of the respondent it was submitted that the sheriff, who was highly
experienced, had provided a coherent and reasoned explanation for her decision. It was
submitted that account should be taken of the candour which had been displayed by the
respondent in his discussions with the psychologists and weight should be given to his
stated willingness to address his deviant thoughts and attitudes. In this regard it was
important to note that there was no history on the respondent’s part which might suggest a
lack of ability or willingness to engage with professional support. The respondent’s age was
important and it was to be noted that Dr MacPherson had formed the opinion that he was in
fact immature for his years.
[32] It was submitted that the psychological reports had identified the presence of risk of
analogous re-offending rather than a risk of escalation to contact offending and had identified
various measures through which this risk could be alleviated and managed. The respondent
was keen to engage with the type of risk management and rehabilitation programmes
mentioned. The sheriff’s report made it clear that she had fully appreciated the content of the
reports and had carefully assessed all that had been said. The decision which she arrived at
was an appropriate one.
Page 13 ⇓
13
Discussion
[33] The Lord Advocate has the right under section 108(1)(a) of the 1995 Act to appeal
against a sentence passed on conviction where it appears to him that the sentence imposed
was unduly lenient. A sentence may only be viewed by the court as being unduly lenient if
it falls outwith the range of sentences which a judge at first instance, applying her mind to
all the relevant factors, could reasonably have considered appropriate – HM Advocate v Bell
1995 SCCR 244. In the present case the submission was that the sheriff’s decision in relation
to whether the risk criteria may be met fell to be seen as unduly lenient in this sense. It was
accepted that if her decision on this matter fell within the range available then the extended
sentence which she imposed is beyond criticism.
[34] Given the narrow and unusual scope of the Crown’s argument it may be helpful to
set out the statutory context within which the submissions were located. An Order for
Lifelong Restriction is a disposal provided for by section 210F of the 1995 Act. It can only be
imposed in the High Court. Such an order is made where the High Court is satisfied, on a
balance of probabilities, that the risk criteria identified in section 210E are met. 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.”
[35] The normal process through which the court would come to be considering whether
to impose an Order for Lifelong Restriction is triggered through Section 210B of the Act.
That section provides that where it falls to the High Court to impose sentence in respect of a
qualifying offence 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. The effect of
Page 14 ⇓
14
this order is that a risk assessment report will be prepared by an assessor accredited by the
Risk Management Authority. That report would then be available to the court in
determining whether or not to make an order under section 210F.
[36] Accordingly, the Crown’s argument in the present case was that the sheriff ought not
to have imposed sentence herself but ought to have remitted the case to the High Court in
order that a judge could consider whether or not to make a risk assessment order under
section 210B. Three matters fall to be taken notice of. First, the reports which the sheriff had
before her were from two eminent and highly experienced psychologists. One is the Lead
Psychologist at the State Hospital, the other, amongst her other qualifications, is a Risk
Management Accredited Assessor. Second, no motion was made on behalf of the Crown
alerting the sheriff to their contention that the risk criteria were met. Third, section 210B(6)
provides that there shall be no appeal against a risk assessment order, or against any refusal
to make such an order. In other words, had the sheriff possessed the power to decide
whether to call for a risk assessment report, in terms of the statutory procedure, her decision,
either way, could not have been the subject of an appeal. Equally, if the Crown’s argument
in the present case was to prevail and a judge of the High Court was to arrive at the same
decision as the sheriff in relation to the risk criteria there could be no appeal from that
decision.
[37] The reasons for the sheriff’s decision in relation to risk assessment are set out in some
detail in the report which she provided to this court. She begins by drawing attention to the
basis of the appeal as set out in the concluding statement of the Note of Appeal:
“The imposition of an extended sentence fails to provide an adequate degree of
protection to the public against the very high risk of serious sexual offending posed
by the convicted person and is accordingly unduly lenient.”
Page 15 ⇓
15
As the sheriff notes, that level of risk was not expressed in the reports which were provided.
In those reports the level of risk was described as being high and in relation to analogous
offending.
[38] In paragraph [29] of her report the sheriff noted that:
“The circumstances of the offences were of a very serious nature but did not include
any physical contact with any of the complainers. The threats by the respondent
resulted in three out of the nine complainers sending sexual images. Of the
remaining six, a number acted quickly, sent no messages and stopped the
communications with the respondent. The respondent posted or shared images in
respect of three of the complainers (TK, AH and KMcG).”
No criticism of this understanding of the facts of the case was advanced.
[39] The sheriff explains that taking account of the less detailed assessment of risk in the
Criminal Justice Social Work Report, and the greater expertise of the psychologists, she
concluded that she was not greatly assisted by that report in the task of considering risk and
preferred the opinions of Doctors MacPherson and Johnstone. She was plainly correct to do
so.
[40] The sheriff informed us that she took account of Dr MacPherson’s conclusion, at
page 18 paragraph 2 of his report, that the respondent “presents a high risk of analogous
offending at this time in the absence of any intervention or supervision”. She noted that Dr
MacPherson expressed the view that the respondent would be a candidate for the Moving
Forward – Making Changes Programme.
[41] She informed us that she took account of Dr Johnstone’s opinion, as expressed at
paragraph 50 of her report, to the effect that “In the absence of any significant change or
robust management of his risk it is likely that Mr McCuaig will continue to pose a risk in the
long term”. She tells us that she understood Dr Johnstone’s reference to not being able to
exclude an escalation scenario to mean that the major consideration in her assessment of risk
Page 16 ⇓
16
was of further offending of an analogous nature, namely stalking of females and not the risk
of actual sexual violence.
[42] At paragraph [38] of her report the sheriff explains that she took into account the
harm caused and considered that there was a significant level of harm involved. In the
following paragraph she explained that, as against that harm, she required to balance the
fact that the respondent had no physical contact with any of the complainers and did not
perpetrate any violence or sexual violence upon any of them. She explains that she
considered the lack of any physical contact was a factor that she had to give some weight to
when deciding upon an appropriate disposal.
[43] Having considered the content of the reports, the nature of the offences and the fact
that the respondent was a first offender, the sheriff did not consider that the respondent may
meet the risk criteria set out in section 210E of the 1995 Act. In arriving at this opinion she
was influenced by the fact that Dr MacPherson had not said in his report that an Order for
Lifelong Restriction was the only method of managing the risk posed by the respondent.
Had he been of that view the sheriff was satisfied that he would have said so, given his
experience in such matters. She was also influenced by the fact that in Dr Johnstone’s
conclusions on the appropriate methods of managing the respondent’s risk she stated that
they should be “akin” to those required for an Order for Lifelong Restriction. Dr Johnstone
did not express the view that such an order was an appropriate way to manage the
respondent’s risk. At paragraph [36] the sheriff explains her understanding of the combined
reports in the following way:
“I drew from the reports by Doctors MacPherson and Johnstone that the risk the
respondent poses is one of further similar offending. Whilst violent sexual offending
cannot be excluded, I considered that on the reports from the psychologists any risk
of that occurring is not at a level that would meet the risk criteria in section 210E.”
Page 17 ⇓
17
[44] In light of this assessment the sheriff goes on to explain that she took account of the
fact that the respondent expressed a willingness to partake in any treatment programmes
offered to him and she concluded that his lack of previous offending, and his acceptance of
responsibility, indicated that a significant period of custody, followed by close management
in the community, under the terms of a licence, would provide supervision, robust
management and an opportunity for change. She therefore decided that an extended
sentence would meet the need for the protection of the public from the risk of future harm
by the respondent and adequately punish him.
[45] It is plain that the sheriff gave careful thought to how to address the unusual and
serious offending which the respondent engaged in. In her understanding of the two
reports the principal risk which was identified was of further analogous offending. We do
not consider that she can be criticised over this assessment. Each report canvassed the risk
of escalation and considered the evidence base for any such prediction. Of course, as
Dr Johnstone said, it could be misleading to generalise from the research findings in an
individual case. But even having individualised her assessment to the factors which applied
to the respondent, the highest concern which Dr Johnstone expressed was that she “could
not exclude an escalation scenario”.
[46] It is also the case that both reports described an ongoing risk in the absence of
intervention and change. Various risk management processes were then identified, tailored to
the level of risk assessed. These included the sort of programmes available in custody and
in the community, ie Moving Forward Making Changes. Each identified the sort of
monitoring which can be accommodated within a combination of extended sentence licence
conditions and the notification requirements provided for by the Sexual Offences Act. Each
report contemplated the respondent being in the community and provided advice on risk
Page 18 ⇓
18
management. The advocate depute invited us to read these suggestions as indicating what
might be available, but not to read into the reports any implication that the authors
considered these to have any prospect of being effective.
[47] In our opinion this is too narrow an approach. Each report set out an assessment of
risk in detail. Each then set out risk management strategies. It would be inconsistent with
the function undertaken by the psychologists to set out risk management strategies in which
they had no confidence. Whilst the Crown’s contention comes to be that it was so glaringly
obvious that the risk criteria may be met in the present case that the sheriff could not but
have acted on that basis, we would simply observe that at no stage in either of the Forensic
Clinical Psychology report do the authors state that the risk posed by the respondent cannot
be managed by means of an extended sentence. Nor do they say that the respondent
requires an Order for Lifelong Restriction, or that such an order should be considered.
Decision
[48] The court is not persuaded that the decision to impose an extended sentence, rather
than remitting the matter to the High Court for consideration of a Risk Assessment Order,
can be characterised as a sentence which fell outwith the range of sentences which the sheriff
could reasonably have considered appropriate.
[49] For the reasons given the appeal is refused.