Lord Justice Clerk

Appellant: Gebbie, Ross; Drummond Miller (for William McCluskey, Glasgow)

Respondent: Fairley QC AD: the Crown Agent

23 May 2014

Legislation
[1] The Criminal Justice (Scotland) Act 2003 (asp 7) inserted certain provisions into the Criminal Procedure (Scotland) Act 1995 (c 46) to enable the High Court to make an Order for Lifelong Restriction ( OLR) upon a convicted person who meets certain "risk criteria". An OLR is a sentence of imprisonment of an indeterminate period (1995 Act s 210F(2)). The criteria are, in short, that there is a likelihood that the person "if at liberty, will seriously endanger the lives, or physical or psychological well-being, of members of the public at large" (ibid s 210E). Before making an OLR, the court is bound "to have regard to" a "risk assessment report" (RAR) as well as "any other information" (ibid s 210F(1)). A RAR is a report prepared by a risk assessor accredited by the Risk Management Authority (RMA) upon the risk posed by the person (ibid 210B(3)). It can only be ordered by the court (a "risk assessment order"(RAO)) if the court considers that the risk criteria may be met (ibid s 210B(2)).

[2] Section 210C of the 1995 Act provides that, in preparing a RAR, a risk assessor:

"(1) ... may, ... take into account not only any previous conviction of the convicted person but also that any allegation that the person has engaged in criminal behaviour (whether or not that behaviour resulted in prosecution and acquittal)."

However, it continues that, where a risk assessor does take an unproved allegation into account, the RAR must:

"(2) ...

(a) list each such allegation;

(b) set out any additional evidence which supports the allegation; and

(c) explain the extent to which the allegation and evidence has influenced the opinion included in the report ... ."

The RAR requires to specify, in accordance with RMA guidelines, whether the risk posed by the person is high, medium or low (ibid s 210C(3)).

[3] In terms of section 210C(5), the convicted person may instruct his own RAR. He may also, in terms of section 210C(7), object to the content or findings of the RAR obtained by the court. If he does, he may produce and examine witnesses about these contents or findings and those of his own RAR (ibid).

[4] It is important to note in limine, in connection with the legislation, that the decision on whether the criteria have been met, and thus whether an OLR should be made, rests with the court and not the risk assessor (Ferguson v HM Advocate 2014 SLT 431, LJC (Carloway) at para [92]).

Procedure
[5] On 26 March 2013, after a lengthy trial at Glasgow Sheriff Court, the minuter was found guilty of 8 charges including a series of assaults on two former cohabitees. These were assaults to the severe injury and danger of the life of KB from 2006 to 2008 and of GM in 2011 and 2012. The libels were of punching and kicking, striking with implements and tightening a cord around the necks of the complainers. The minuter has a significant previous conviction in 2004 for assaults on males to severe injury and permanent disfigurement. This resulted in an extended sentence containing a custodial element of just under 5 years. He has a further conviction for assaults on females in 2008, which attracted a one year prison sentence.

[6] The sheriff was concerned that the risk criteria may be met. He obtained a Criminal Justice Social Work Report and a psychiatric report. On 10 May 2013 he remitted the minuter to the High Court for sentence under section 195 of the 1995 Act, having been confirmed in his view that the criteria may be met. On 28 May 2013 the High Court made a RAO under section 210E and appointed an accredited risk assessor to prepare a RAR. The sentencing diet was adjourned until 26 August 2013.

[7] There appears to have been some consternation thereafter when the judge received a letter from the mother of one of the complainers (GM) enclosing a newspaper article, which the judge forwarded to parties and the risk assessor. This prompted the minuter to lodge a Minute intimating his intention to raise a compatibility issue on the basis that section 210C of the 1995 Act is incompatible with Article 6 of the European Convention. The Minute states that the incompatibility is with "the rights to a fair trial and to be presumed innocent until proved guilty according to law". No further specification is given as to how the incompatibility arises. No principles or authorities are cited and no remedy is sought other than a determination of the compatibility issue. The RAR does make some, albeit limited, mention of the incident in the article which concerned the suicide of a girlfriend of the minuter, namely EB, in September 2009, when the minuter was in prison.

[8] By the time the case called again for sentence on 28 November 2013, the minuter had lodged objections to the content and findings of the RAR. He was also proposing to instruct an expert to consider the terms of the RAR. The court adjourned the sentencing diet until 30 January 2014 in order to hear submissions on the compatibility issue and the objections. On 30 January 2014, the judge declined jurisdiction, apparently on the basis that he had prompted the Minute by forwarding the article to the risk assessor. On 10 March 2014, the case called again, when a different judge decided that, instead of determining the issue, he would refer it to a bench of three judges in terms of section 288ZB of the 1995 Act (as inserted by the Scotland Act 2012 s 35). The reasons given by the judge for making the reference are minuted (as required by Act of Adjournal (Criminal Procedure Rules) 1996 rule 40.10(2)(b)) as being "the novelty and potential complexity of the procedure". Parties were directed to lodge a reference by 28 March 2014, but instead they lodged individual drafts. The case required further continuation on at least two occasions until 22 April 2014 to allow a reference to be adjusted (ibid rule 40.10(3)).

The RAR
[9] The RAR, which is dated 7 November 2013, assesses the risk posed by the minuter as "high". The executive summary explains the reason for this as being his "poor emotional and behavioural controls within the context personality difficulties". In particular:

"Assessment of his personality finds evidence of significant borderline, paranoid and antisocial personality traits. He has obsessional and controlling features. Although he is able to remain emotionally stable in many contexts, these characteristics cause him to be particularly sensitive to perceptions of threat or lack of respect which result in feelings of anger that drive aggression. Intense feelings linked to his fragile self esteem are particularly triggered when he is in an intimate relationship with destructive consequences.

His serious violent offending against men and intimate partners has occurred against the background of these life-long difficulties and is exacerbated by the consumption of alcohol or substance abuse (including anabolic steroids) and some beliefs about how he should act that make violence more likely ... ."

The risk assessor considered that the minuter has an enduring propensity to endanger the public; particularly men who aggressively confront him and women with whom he has an intimate relationship.

[10] Under a heading "Limitations of Information", the risk assessor explained that he had had access to summaries of police intelligence about the minuter, rather than original sources, but he stated expressly that:

"in the report it has not been necessary for the Assessor to draw on these allegations in making his conclusions.

If all the allegations are not taken into account, one would still have to conclude that there is high a likelihood (sic) of [the minuter] committing further serious violent offences ... .

If all the allegations are taken into account, then the main effect is to provide some potential additional information about [the minuter's] general pattern of offending behaviour.

Therefore, allegation evidence has little significance in the Assessor's determination, the police intelligence in particular is therefore omitted from the Assessor's considerations of risk level and the likelihood of harm to others in [the minuter's] case" (para 4.1).

[11] These comments relate to a later section in the RAR about what is described as "Unproven and Alleged Offending" (para 4.3.2). It is reported that, although there was no significant discrepancy between the minuter and the police about the nature of his general offending, there was a dispute about the frequency and seriousness of that offending. The minuter "fully admits" to buying and selling drugs, associating with known criminals, being violent towards his girlfriends, being friendly with persons involved in gang violence and having a best friend who was shot during such violence. However, he played down the significance and magnitude of this activity. The police intelligence was that the minuter was linked, on 25 occasions in the last 5 years or so, to possession of firearms, violence, supply of class A drugs and debts to criminal associates. The police view was that he was the leader of a local organised crime gang. These allegations, particularly those involving firearms, were denied by the minuter. Similar considerations applied to allegations that the minuter had been violent to 8 rather than just 2 previous girlfriends.

[12] Section 6 of the RAR distinguishes between, and lists, the documentation considered by the risk assessor. It describes previous convictions on the one hand and "allegation information used, any supporting evidence and the extent to which they influenced the assessed opinion on risk level" on the other. The risk assessor noted the allegations from former girlfriends and the prisons and police intelligence but stated, in relation to the extent of influence: "Not used to assess risk level". There is a reference to the risk assessor using the content of the letter sent to the court by the mother of a "complainer" in so far as it describes the impact of the minuter's behaviour on her and her family. The reference to this complainer is not to one named in the charges.

The Reference and Submissions
[13] The precise terms of the reference to the court by the judge are as follows:

1. Is said section 210C incompatible with the provisions of Article 6(1) ECHR insofar as the assessor may, "take into account any allegation that the person has engaged in criminal behaviour (whether or not that behaviour resulted in prosecution and acquittal)." ?

2. Is said section 210C incompatible with the provisions of Article 6(2) ECHR insofar as the assessor may, "take into account any allegation that the person has engaged in criminal behaviour (whether or not that behaviour resulted in prosecution and acquittal)." ?

Minuter
[14] The minuter's contentions are set out in four paragraphs wherein it is said that, in making the RAO, the judge "set in train a sequence of events that could not be stopped and which is incompatible with the rights ... under Article 6(1) and (2)". The process of assessment did not provide for proper disclosure of the sources of allegations or charges, which have not been proved, nor provide for a fair trial of these. Consideration of the allegations by the court and the risk assessor was a violation of the fair trial right. The presumption of innocence will be violated if a judicial decision reflects an opinion that the minuter is guilty of a criminal offence of which he has not been found guilty. This right may be infringed not only by the court but by the risk assessor who is "carrying out a public function and is accordingly a public authority". There is citation in the reference of Allen v United Kingdom, 12 July 2013 (no 25424/09) and Phillips v United Kingdom [2001] 11 BHRC 280. In submissions, reference was also made to Parole Board v DP 2013 SC 462.

[15] The court required elaboration on 3 matters. The first was the basis upon which it was argued that a risk assessor was a public authority. The reply was that this was because the risk assessor was appointed by the court. The second was how a compatibility issue arose at this stage of the proceedings if the minuter was not yet a "victim". The minuter at first accepted that he did have to be a victim for a compatibility issue to arise, but immediately departed from that yet maintained that the minuter was nevertheless a victim, having been made the subject of allegations of which he had never been charged. The third was what difference a finding of incompatibility would make, since there was no prohibition on a risk assessor taking into account general allegations in assessing risk. The reply to this was a reference to Marc Anthony's repetitive references in Shakespeare's Julius Caesar (Act III, Sc II) to Brutus being an honourable man; the relevance of which the court may not have fully grasped. In relation to remedy, the minuter wished the RAO quashed. Finally, it was said that section 210C could be read down to exclude unproven allegations from a RAR.

Crown
[16] The Crown response in the reference commences with the contention that section 210C relates solely to sentence, when the presumption of innocence was not normally engaged (Engel v Netherlands (No 1) (1976) 1 EHRR 647, at paras 49 and 90; Phillips v United Kingdom (supra) at para 35; McIntosh Petnr 2001 SC (PC) 89. The section permitted the risk assessor to take into account allegations of criminal conduct only for the purpose of forming an opinion on the level of risk posed by the minuter. That opinion was used by the judge only to determine whether the risk criteria were met. Neither the court nor the risk assessor made decisions reflecting that the person was guilty of unproven allegations. It was accepted that the presumption of innocence in Article 6(2) could be engaged if allegations were made which amounted to a new charge (Phillips (supra)). That was not the case here. Section 210C was part of the sentencing process and neither the risk assessor nor the court had made determinations regarding the allegations.

[17] Article 6(2) did protect persons who had been acquitted of criminal charges from being treated by public officials as if they were guilty (Allen (supra), at para 94), but this depended upon the challenged proceedings being consequential on the acquittal proceedings (Rushiti v Austria (2001) 33 EHRR 56, at para 27) or requiring an examination of these proceedings (Allen (supra), at para 104). That was not the position in relation to the use of section 210C.

[18] Article 6(1) could be engaged in relation to the sentencing process (Phillips (supra), at para 39). However, it was not breached here where the allegation information was being used only to determine risk and to ensure that the sentencing process was carried out on a properly informed basis. Furthermore there were significant safeguards built into the legislation to ensure that the assessment and sentencing processes were fair; notably the right to object to the RAR and to lead evidence in that regard. The risk assessor was required to list the allegations, to set out the evidence in support of them and to explain the extent to which they had been founded upon. The convicted person had a right to obtain his own RAR.

[19] In submissions, the Crown referred to the specific terms of the reference being to the actions of the risk assessor and contended that the minute was based on a fundamental misconception. The risk assessor was not a decision maker. It was the court that was the decision maker. The court's decision may be subject to challenge, but the actings of an risk assessor, who was only ingathering information, identifying it and delivering it to the court, were not (see Minelli v Switzerland, (1983) 5 EHRR 554, at para 37, cited in Allen (supra), at para 120). The role of the risk assessor did not engage Article 6. If it were otherwise, it would not be possible for anyone to make an allegation.

Decision
[20] For section 210C to be regarded as incompatible with Article 6 of the European Convention in respect of the actings of a risk assessor, it must, first, be established that a risk assessor is a "public authority":

"in the sense that it (sic) carries out, either generally or on the relevant occasion, the kind of public function of government which would engage the responsibility of the United Kingdom before the Strasbourg organs" (Ashton Cantlow PCC v Wallbank [2004] 1 AC 546, Lord Rodger at para 163, the latter reference being to European Court of Human Rights).

[21] A public authority is defined in section 6(3) of the Human Rights Act 1998 as including a court or tribunal and "any person certain of whose functions are functions of a public nature"; but "in relation to a particular act, a person is not a public authority" if the nature of the act is private (ibid s 6(5)). A risk assessor is not an employee of the court nor is he necessarily employed by any central or local government department or agency. He is a private individual who, once duly accredited, engages in this type of work, for profit. He is not under any duty to accept the court's appointment in a particular case. Whether he does so or not will, no doubt, depend upon his other commitments. The important point is that the risk assessor is engaged by way of a private law contract between the risk assessor and the court (or, more accurately, the Scottish Court Service). At first blush, therefore, it would be surprising if, simply by entering such a contract, a risk assessor, as a private individual, came under a duty to comply with Article 6 in compiling a RAR. The mere fact that the court, or any other public authority, solicits an opinion from a person of skill does not convert that person into a public authority. If it did, that person would curiously himself lose the protections of the Convention in relation to the performance of his contractual duties, since he could thereafter never be a "victim" in that regard (1998 Act, s 7(7), and the reference to non-governmental organisations in the European Convention, Art 34).

[22] There may, of course, be situations in which the state will remain liable for a breach of a person's Convention rights, notwithstanding that it may have delegated "essentially state or governmental functions ... to a private law body" (YL v Birmingham CC [2008] 1 AC 95, Lord Mance at para 99). That is not the position here. The state or public function being carried out is that of sentencing a convicted offender. There has been no delegation of that task by the court. All that has occurred is that, with statutory authority, the court has requested an opinion from a private individual, skilled in such work, on the risk posed by the offender. The public function of sentencing continues to be performed by the court and by the court alone (see supra, Ferguson v HM Advocate 2014 SLT 431). The risk assessor's duties are to the court and are matters of private law contract and not public law. The risk assessor is not controlled by the court or the state. Rather, he is intended to be independent of both. He is not an "emanation" of the state (Aston Cantlow (supra), Lord Hope at para 55). For this reason alone the two questions posed in the reference must be answered in the negative.

[23] Secondly, for a compatibility issue to be said to "arise" in these criminal proceedings in terms of section 288ZB of the 1995 Act, the minuter must be able to demonstrate that "he is (or would be) a victim of the unlawful act" according to the meaning of that phrase in Article 34 of the Convention (1998 Act, s 7(1) and (7)). The minuter has failed to establish that he has been, or is at risk of being, directly affected by any act of the risk assessor in relation to any unproved allegation (ie in terms of the questions posed in the reference). The risk assessor has specifically said (supra, para 4.1 of RAR) that, in reaching his conclusions on the risk posed by the minuter, he has not required to rely on any such allegation. Even if he had, the 1995 Act provides a mechanism for challenging any allegation. Ultimately, the minuter could only reasonably maintain that he was, or was likely to become, a victim if it could be shown that there was some inevitability not only the risk assessor's findings had been based on unfounded allegations but also that they would be taken into account by the court notwithstanding the detailed provisions in the Act (ss 210C(2), (5) and (7)) designed to deal with such a hypothetical situation. Even then, the complaint would have to be directed against the court and not (as set out in the reference) solely against the risk assessor. The court expressly reserves its position relative to the extent to which a court can take into account unproved allegations of criminal conduct in the sentencing process. That is not the issue in this reference. For this second reason, the questions in the reference fall to be answered in the negative. In that respect, no compatibility issue actually arises in this process.

[24] Thirdly, it requires to be re-emphasised that if a person, whether accused or convicted, wishes to raise a compatibility issue in criminal proceedings, that issue must be linked to some form of practical remedy in those proceedings. The occurrence of a compatibility issue is an adjunct to such a remedy and not the other way around (see generally Sabiu v Wyllie 2014 SCCR 59, LJC (Carloway), delivering the Opinion of the Court, at para [24]). If, therefore, the minuter considered that the actions of the risk assessor had inevitably caused an unfair trial, then a plea in bar of sentence or similar contention would be required. If it is not being maintained that an unfair trial is inevitable, it is difficult to see how a compatibility issue has arisen at all (Nisbet v Butt 2012 SCCR 649, Lord Carloway, delivering the Opinion of the Court, at para [16]). If all that is to be maintained at the end of the day is that the sentencing judge should ignore parts of the RAR, then the minuter will have the opportunity of addressing the judge on that point. If the judge repels that submission and, in consequence, imposes a sentence (such as an OLR) which is considered excessive, the minuter has the opportunity to seek leave to appeal against that sentence. As matters stood at the commencement of the hearing, no remedy was being sought other than some form of abstract declarator of incompatibility which itself appeared to have no practical effect. The RAR has already been compiled and the sentencing judge remains bound to have regard to its terms (1995 Act, s 210F(1)). The declaration sought would not prohibit a risk assessor from taking into account any information, true or otherwise, in compiling the RAR. In short, the court does not consider that a compatibility issue "arises" in these proceedings for this reason also.

[25] Eventually the minuter stated that he wanted the court to quash the RAO. The problem with that request is that it has already been made and there is a statutory prohibition on appeals against the making of a RAO (1995 Act, s 210B(6)).

[26] Finally, it is somewhat unusual for a judge of the High Court to refer a case to a bench of three without at least providing his own analysis of the problem and proposing a solution. The removal of a case from first instance proceedings to appellate level is of course competent, where a compatibility issue is raised (1995 Act s 288ZB). However, other than in quite exceptional cases, the court expects judges at the level of the High Court to be able to address a compatibility issue properly raised and to determine it within the first instance process, leaving the normal appellate courses open in the event that either party wishes to challenge the actual decision reached.