Legislation: s210B-210H of the Criminal Procedure (Scotland) Act 1995
An Order for Lifelong Restriction (OLR) is the equivalent of a life sentence, for non-murder cases in which the convicted person is assessed as presenting a serious ongoing risk to the public.
As with a life sentence, an OLR has a “punishment part”, which is the minimum period of time that the offender must spend in custody before they can be considered for release by the Parole Board for Scotland. If the person is ever released, they will be subject to risk assessments and licence conditions for the remainder of their life, and will be liable for recall to prison at any time.
OLRs can only be made by the High Court of Justiciary.
The first stage in the process is where a person is due to be sentenced in the High Court for an offence other than murder, and the offence falls within the definition of s210B(1)(a) of the 1995 Act: a sexual or violent offence (defined in s210A(10)), or an offence “the nature of which, or circumstances of the commission of which, are such that it appears to the court that the person has a propensity to commit any such [sexual or violent] offence”.
The second stage is that the court will consider whether “the risk criteria” are met. These are defined in s210E as follows:
“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.”
If the risk criteria are met, the third stage is that the court will make a “risk assessment order”, unless it makes an interim compulsion order under s53 of the 1995 Act (detaining the convicted person in the State Hospital, Carstairs) instead. A risk assessment order means that the case will be adjourned for up to 90 days, during which time the convicted person will be taken to a place where a “risk assessment report” (“a report as to what risk his being at liberty presents to the safety of the public at large” – s210B(3)(a)) can be prepared. These are done by people accredited by the Risk Management Authority; a quango established by s3 of the Criminal Justice (Scotland) Act 2003.
The risk assessment report (s210C of the 1995 Act) can take into account “not only any previous conviction of the convicted person but also any allegation that the person has engaged in criminal behaviour (whether or not that behaviour resulted in prosecution and acquittal)”. The report must conclude whether the overall risk posed by the convicted person to the public is high, medium or low.
The convicted person, within 14 days of receipt of the report, can object to its content or findings. If this happens, there will be a subsequent proof at which both Crown and defence can examine witnesses on the disputed matter(s). The convicted person can also instruct their own separate risk assessment, to be considered by the court in the same way as the RMA assessment.
The final stage of the OLR process is the High Court Judge’s consideration of the risk assessment(s) available, and their conclusions as to whether the s210E risk criteria are met. The high-medium-low conclusion in the RMA report is not determinative of whether the judge will make an OLR or not (although, obviously, they are unlikely to do so if the risk is deemed to be low).
For an example of a successful appeal against the imposition of an OLR, where the determinative factor was the lack of “sufficient link between the offence and the risk”, see Kinloch & Quinn v HMA [2015] HCJAC 102.
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