Paedophile loses appeal against Order for Lifelong Restriction

Andrew Byrne, 27, was given an Order for Lifelong Restriction (OLR) with a punishment part of six years in 2010 after pleading guilty at the High Court in Glasgow to a total of 32 charges, including four of unlawful sex with a girl under 16, lewd practices, child pornography possession and distribution.

On appeal he argued that an OLR was not required, but the Criminal Appeal Court refused the appeal after a risk assessment report (RAR) found that he would continue to have an “enduring propensity to seriously endanger the wellbeing of the public at large”.

The Lord Justice General, Lord Carloway, sitting with Lady Paton and Lord Menzies, heard that the sentencing judge had concluded that the risk criteria for imposing an OLR were met after an RAR found that, if at liberty, the appellant would pose “a high risk of causing serious harm to the safety of the public”.

However, the appellant’s note of appeal criticised the findings on the basis that the report 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.

The appeal court ordered a further RAR, from a Professor David Cooke, which assessed the appellant’s risk as “high”.

But it was submitted that the second 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 he would be “likely to comply”.

It was argued that, having regard to the various protective orders that might be made post-release, an OLR was not necessary.

Reference was made 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.

There were also the notification requirements under the sex offenders’ regime, as well as Multi-Agency Public Protection Arrangements (MAPPA), which could be made to manage the particular risk at the end of an extended sentence.

Further, there was the ability of the Chief Constable to apply to the sheriff for a Sexual Offences Prevention Order, once the extended sentence had been completed.

Refusing the appeal, the judges observed that in the 2014 case of the Ferguson v HM Advocate, it was stated that the time for assessing the likelihood of serious endangerment was 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.

Delivering the opinion of the court, the Lord Justice General said: “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.”

The appeal judges noted that while the RAR by Professor Cooke concluded that the appellant would be “likely to comply with a rigorous supervision regime”, that was in the context of the appellant in a prison setting.

Lord Carloway added: “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.

“In these circumstances, this court must refuse the appeal.”