Attempted murderer loses appeal against order for lifelong restriction

It was argued that the sentencing judge erred in concluding that the appellant met the “risk criteria”, but the Appeal Court of the High Court of Justiciary dismissed the claim.

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Brodie and Lord Turnbull, heard that following a trial in February 2016 the appellant Lee Connors was convicted of six charges: attempted murder with a firearm; three charges relating to his possession the gun and ammunition; assault by presenting the weapon; and breach of the peace.

Risk criteria

The court was told that the appellant turned up at the home of his ex-girlfriend Kimberley Dow but was “raging” at the presence of another man, Grant McBeth.

Following a verbal altercation the appellant sped off in his car and McBeth went after him, but returned within five minutes and beeped to gain Ms Dow’s attention.

She just managed to get out of the building when the appellant “came screeching round the corner like a maniac”.

He was pointing the gun out of the window as the two cars came level and then pulled the trigger three times while the gun was pointed at McBeth’s face.

Ms Dow spoke into her phone as if calling the police and the appellant drove off.

When the gun was recovered it had three bullets in the chamber, each with a firing pin impression, indicating that they had been struck by the firing pin but not detonated.

Order for Lifelong Restriction

Considering that the risk criteria might be met the trial judge made a risk assessment order, and the assessor stated that she considered that the appellant presented a “high risk”, adding that in order to protect the public, “long-term monitoring and supervision are required for Mr Connor and in the absence of treatment, management and supervision, he is likely to continue to seriously endanger the lives, or physical or psychological wellbeing of the public at large”.

At the adjourned sentencing diet the trial judge was unavailable due to illness so the case called before another judge.

In making the OLR, which was not contested by the solicitor advocate for the appellant, the sentencing judge stated that on the basis of the conviction and the terms of the risk assessment report, he was satisfied that the risk criteria were met.

An appeal against sentence was marked on the basis of “defective representation” and an argument that the OLR was “not appropriate”, but only the second ground passed the sift.

Sentencing judge ‘erred’

Counsel for the appellant, Andrew Brown QC, submitted that the sentencing judge “erred” in finding that the risk criteria had been met, as the information before the judge did not suggest that the appellant presented a “continuing and indefinite risk to public safety”.

It was argued that the assessor had not properly addressed the risk that the appellant would pose at a time in the future when, other than with an OLR, he would be at liberty and no longer under any post-release supervision.

The sentencing judge had said that he took the report at “face value”, but he should have been “more hesitant” and should not merely have accepted the terms of the report.

It was also submitted that while the appellant had initially denied his offending, that position had now changed and he had been “responding well” within the custodial setting.

Judge’s decision was ‘valid’

Refusing the appeal, the judges noted that in Ferguson v HMA 2014 SLT 431 it was observed that where an assessment of “high risk” has been made and the judge accepts it, it is a “strong indicator” pointing towards the necessity for an OLR.

Delivering the opinion of the court the Lord Justice Clerk said: “The fact that such a classification means that the assessor considers the offender to present ‘an enduring propensity to seriously endanger the lives, or physical or psychological well being of the public at large’ and that ‘the potential for change with time and/or treatment is significantly limited’ are powerful factors in favour of an OLR.

“In the present case, the sentencing judge had regard to the factors referred to in Ferguson. Notwithstanding the fact that no contrary submission was made to him, he recognised that he had to examined the report with care and satisfy himself that the terms of the report justified the assessment made.

“He gave careful consideration to the report and its conclusions. He noted that the assessor had given detailed reasoning for her conclusions, and narrated in some depth the facts upon which they were based.”

The court also considered that senior counsel had taken the sentencing judge’s remark that he had taken the risk assessment report at face value “out of context”.

Lady Dorrian added: “The sentencing judge made it abundantly clear that he recognised that he had to satisfy himself as to the risk criteria, and that in addressing what to make of the risk assessment report he subjected the report to an appropriate analysis to test the conclusions reached against the facts upon which it as based and the reasoning adopted.

“The fact that the appellant might have been compliant within the prison system, or that he now appears at least to acknowledge his guilt, does not deprive the sentencing judge’s decision of validity.

“In the circumstances we cannot say that the sentencing judge was not entitled to impose an OLR and the appeal will be refused.”