Rapist convicted of assaulting fellow prisoner fails in appeal against order for lifelong restriction

John McKinlay, 29, who has convictions for rape and domestic abuse and assaulting fellow prison inmates, claimed that the sentencing judge “erred” in concluding that the risk criteria for making the order had been met.

But the Appeal Court of the High Court of Justiciary ruled that the judge reached the “correct” decision after noting that the risk assessment report identified “substantial risk factors associated with both future sexual violence and future non-sexual violence”.

Order for Lifelong Restriction

The Lord Justice Clerk, Lady Dorrian, sitting with Lord Drummond Young and Lord Turnbull, heard that the appellant was convicted at Glasgow High Court of four charges involving domestic assault to injury and two charges of domestic assault and rape, for which he received an extended sentence of eight years with a custodial element of six years and an extension period of two years.

While serving that sentence he received a sentence of a further four years’ imprisonment in 2015 after committing an assault to severe injury, permanent disfigurement and danger of life on a fellow inmate.

Then, in 2017 he pled guilty at Edinburgh Sheriff Court to another assault after throwing boiling water on an inmate following an altercation between the pair when the complainer knocked the appellant’s meal tray out of his hand. 

The case was remitted to Edinburgh High Court for sentence and the sentencing judge Lord Uist made a risk assessment order under section 210B of the Criminal Procedure (Scotland) Act 1995 for the purpose of obtaining a risk assessment report.

The report was prepared by Stephen Evans, a consultant forensic psychologist and Risk Management Authority accredited assessor, while the defence also instructed a psychiatric report, which was prepared Dr Robert Brogan.

In his report Mr Evans detailed the appellant’s offending history, noting that his first arrested on a charge of rape was in 2005 when he was aged 15, following which he appeared in the High Court in Glasgow and pled guilty to a sexual assault perpetrated against a young adult woman who suffered from learning difficulties and received a sentence varied on appeal to a period of 12 months’ detention.

Mr Evans also detailed the appellant’s history of offending and other misbehaviour within the prison environment, noting that in addition to the two serious offences for which he had been prosecuted he had accrued a further 37 reports for disciplinary infractions since entering prison in 2012. 

It was noted that he had spent a number of periods in the segregation and rehabilitation unit as a consequence of presenting a risk to other prisoners - the most recent in relation to a concern about an attempt to take a hostage in 2016.

In relation to the appellant’s medical history, Mr Evans noted that he had been diagnosed as suffering from Antisocial Personality Disorder and that he had extensive contact with mental health and addiction teams while in prison, adding that he had displayed hostility towards professionals, officers and other prisoners.

In summary, Mr Evans concluded that the appellant displayed a diverse pattern of acquisitive violent and sexual offending and in light of the assessments he had carried out in the preparation of his report the psychologist expressed the opinion that the appellant presented as a “high risk”.

‘Flawed risk assessment’ 

However, Dr Brogan considered that the appellant was suffering from a mental disorder with the dual diagnosis of mental and behavioural disturbances due to multiple drug use and use of other psychoactive substances and adult ADHD.

His opinion was that both of these disorders were major factors in the appellant’s offending, that treatment for both was available and should reduce the risk of further offending.

Dr Brogan also expressed the opinion that Mr Evans was wrong to say that the appellant constituted a high risk. 

In light of the evidence led before him at an evidential hearing the sentencing judge was satisfied that the risk criteria were met in the appellant’s case, having preferred the evidence of Mr Evans, and he made an order for lifelong restriction with a punishment part of two years and three months imprisonment.

But the appellant challenged the sentence imposed, arguing that the report prepared by Mr Evans was “flawed”.

It was submitted that Mr Evans had only met the appellant on one occasion for an hour-and-a half, and that the report was almost entirely based on a “paper exercise”.

The appellant had only recently been diagnosed with adult ADHD and the exercise which Mr Evans undertook took little or no account of this.

It was also argued that the sentencing judge had given “undue weight” to the evidence given by Mr Evans and that he failed to give proper weight to the evidence of Dr Brogan.

‘High risk’

Refusing the appeal, the judges noted that Mr Evans was an experienced psychologist and risk assessor who had factored in the appellant’s offending and medical history, including ADHD, into his risk assessment.

The court concluded that the sentencing judge was “entitled” to accept Mr Evans’ evidence that the appellant presented a “high risk” to the public if at liberty and to reject the competing evidence given by Dr Brogan.

Delivering the opinion of the court, Lord Turnbull said: “As noted by Mr Evans…the appellant has a pattern of violent offending against intimate partners, fellow prisoners and members of the public. He has a pattern of sexual offending against adult women in intimate relationships and has repeated these offences when he has been at liberty. 

“He has long-standing patterns of substance abuse and his lifestyle has been dominated by a need to maintain a hedonic tone, he has attempted to continue this inside prison. He has been at liberty for less than four years in the last 10 years and has continued to offend inside prison.

“Substantial risk factors associated with both future sexual violence and future non-sexual violence were identified in the use of the relevant risk assessment tools. The offences which the appellant committed in prison were noted as being similar to the domestic assaults perpetrated by the appellant in that the victims appeared to be seen by the appellant as criticising him.

“In all these circumstances we are entirely satisfied that the sentencing judge was correct in arriving at the view that the risk criteria were met in the appellant’s case and in concluding that an order for lifelong restriction ought to be imposed.”