BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Printable PDF version]
[Help]
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2024] HCJAC 8
HCA/2022/564/XC
Lord Justice Clerk
Lord Pentland
Lord Matthews
OPINION OF THE COURT
delivered by LORD PENTLAND
in
APPEAL AGAINST SENTENCE
by
JORDAN MITCHELL
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Ogg, Sol Adv; Paterson Bell, Solicitors
Respondent: Farrell, AD; the Crown Agent
8 February 2024
Introduction
[1]
This appeal against sentence first came before the court (comprising Lord
Pentland and Lord Matthews) for a hearing on 14 March 2023. The sentence had
been imposed in the High Court on 15 December 2022 on a remit from the Sheriff
Court at Falkirk. On that date the sentencing judge imposed an extended sentence of
14 years, comprising a 4 year custodial term and a 10 year extension period,
2
backdated to 18 February 2022 when the appellant had first appeared on petition.
The judge considered that the risk criteria specified in section 210E of the 1995 Act
had not been met. Accordingly, he did not impose an order for lifelong restriction.
The criteria are that the nature of, or the circumstances of the commission of, the
offence(s) either in themselves or as part of a pattern of behaviour are such as to
demonstrate that there is a likelihood that, if at liberty, the offender will seriously
endanger the lives, or physical or psychological well-being, of members of the public
at large.
[2]
At the hearing on 14 March 2023, having been addressed by Ms Ogg on
behalf of the appellant, this court took a different view from the sentencing judge as
to whether the risk criteria might be met; the court was satisfied that in the very
concerning circumstances of the case the criteria might be met. In terms of
section 210B the court therefore made a risk assessment order and appointed Dr John
Marshall, consultant clinical and forensic psychologist and an accredited risk
assessor, to prepare a risk assessment report.
[3]
Dr Marshall duly reported on 7 June 2023. He concluded that the appellant
presented a high risk. The appellant lodged objections to Dr Marshall's report and,
as he was entitled to do in terms of the statutory scheme, instructed a risk assessment
report from Dr Claire MacNab, consultant clinical psychologist. Dr MacNab also
reached the conclusion that the appellant presented a high risk.
[4]
The appellant lodged revised objections to Dr Marshall's report. The appeal
called before this court for a continued hearing of the appeal on 8 February 2024.
3
Background
[5]
The appellant pled guilty in Falkirk Sheriff Court on 1 June 2022 to three
charges arising from events at Forth Valley Royal Hospital on 5 and 15 October 2021
and a further bail offence. The plea was tendered under section 76 of the 1995 Act.
[6]
The charges were as follows:
"(1)
on 05 October 2021 at Forth Valley NHS Trust, Accident and
Emergency Department, Stirling Road, Larbert, being a public place, you
JORDAN MITCHELL did, without reasonable excuse or lawful authority,
have with you an article which had a blade or was sharply pointed, namely
a lock knife:
CONTRARY to the Criminal Law (Consolidation) (Scotland) Act 1995,
Section 49(1) as amended;
(2)
on 05 October 2021 at Forth Valley Royal Hospital, Stirling Road,
Larbert, you JORDAN MITCHELL did behave in a threatening or abusive
manner which was likely to cause a reasonable person to suffer fear or alarm
in that you did state that you had killed and mutilated animals on a number
of occasions and that you had intended to murder members of the public in
the future;
CONTRARY to Section 38(1) the Criminal Justice and Licensing (Scotland)
Act 2010;
(3)
on 15 October 2021 at Forth Valley Royal Hospital, Stirling Road,
Larbert, you JORDAN MITCHELL did assault Greig Smith, c/o the Police
Service of Scotland and did repeatedly kick him on the body;
and it will be proved in terms of Section 1 of the Offences (Aggravation by
Prejudice) (Scotland) Act 2009 that the aforesaid offence was aggravated by
prejudice relating to disability;
(4)
you JORDAN MITCHELL being an accused person and having been
granted bail on 18 October 2021 at Falkirk Sheriff Court in terms of the
Criminal Procedure (Scotland) Act 1995 and being subject to the condition
inter alia conform (sic) to the directions of bail officer (sic) and attend
meetings at Brockville Social Work as stipulated did between 16 February
2022 and 17 February 2022 and at Hope Street, Falkirk fail without reasonable
excuse to comply with said condition in respect that you did fail to appear at
the stipulated meeting;
CONTRARY to the Criminal Procedure (Scotland) Act 1995, Section 27(1)(b)."
4
[7]
The sheriff adjourned for a criminal justice social work and psychiatric
reports until 23 June 2022; he remanded the appellant in custody. After further
procedure he remitted the case to the High Court for sentence.
[8]
In a brief report, the sheriff explained the procedural history and his
reasoning for remitting. His view was that the risk criteria might be met, with
particular regard to Professor Lorraine Johnstone's findings in a psychology risk
assessment that the appellant showed some evidence of anti-social personality
disorder traits. A risk assessment order can only competently be made by the High
Court (section 210B).
Circumstances of the offences
[9]
The following is based on the comprehensive and helpful report provided by
the sentencing judge.
[10]
Charge 1 came to light when the appellant attended at the Accident and
Emergency Department and said he had cut his left wrist area with a knife. After
discussion with medical staff, he produced from his bag the knife he had used. He
was thus in possession of a lock knife in a hospital.
[11]
In the course of his attendance, the conduct reflected in charge 2 occurred
when the appellant told staff that he had a long-standing plan to murder people and
this was why he had purchased the knife. He planned to keep killing until being
arrested. He said he had been researching murder and mass murderers online and
also how to avoid being detected on committing murder. He gave a disturbing
history of torturing, mutilating and killing animals.
5
[12]
Having been admitted to hospital in connection with his mental health,
charge 3 arose when, on 15 October 2021, the appellant responded to the aggressive
gestures of a mentally disturbed patient. The appellant kicked him to the ground
and continued to run at him and to kick him repeatedly to the body until he was
restrained.
[13]
The terms of charge 4 are self-explanatory. The appellant well-understood
that the police would come to arrest him for breach of bail conditions. Following his
arrest he continued to express intentions to go to the canal and kill people and
himself.
The appellant and his previous convictions
[14]
The sentencing judge explains in his report that the appellant, who is now 27
years of age, was 24 and 25 when he committed the offences. While the appellant's
schedule of convictions refers only to road traffic convictions attracting modest
penalties, his CPO was breached and he was sentenced to an unspecified period of
imprisonment. He admitted other offending, apparently unknown to the authorities,
throughout his life, including killing animals from the age of 10, fire-raising and
vandalism.
[15]
The appellant is the youngest of three children and experienced difficulties in
early childhood when his parents separated and his mother entrusted him to the care
of an older child while she went drinking. He reported watching and enjoying
videos of people being killed and watching violent films with his father. His father
was a bully, but they have had better contact more recently. The appellant was
bullied at school, does not appear to have had any adult relationships and seems to
6
have no friends. He has said that he wants to live alone and in isolation. He left
school at 16 without qualifications and has worked only for his father, sporadically.
He has stated that prior to his remand he had sold all of his possessions and isolated
himself from his family.
[16]
The appellant has had concerns about his own mental health but has not been
found to suffer from mental illness. He has been referred to the Adult Autism Team.
He reports historical use of illicit Valium and regular problematic use of cannabis.
CJSWR
[17]
In a report of 21 June 2022 Sarah Ferguson, Senior Social Worker, noted
contradictions in the appellant's accounts of his motivations and intentions and
suggested that further assessment was required as to the imminence of the risk of
harm which he presented. She reported that he has described plans to kill people
and in some respects identifies with Incel ideology
1
. He had had fantasies of
perpetrating mass killings. The appellant was considered to present a very high risk
of further offending and a high level of needs. He was at risk of causing serious
harm.
[18]
In the community he was managed under the PREVENT Multi-agency
Partnership. All the agencies involved were concerned that he had the capability to
present a risk of serious harm to the public. The sheriff was urged to consider
remitting to the High Court in order for a risk assessment report to be prepared.
1
Incel refers to a person, usually a man, who regards himself as being involuntarily celibate and
typically expresses extreme resentment and hostility towards those who are sexually active,
particularly women.
7
Psychiatric reports
[19]
Dr David Cumming, Consultant Psychiatrist, reported on 20 June 2022 that
he had not met the appellant for the purpose of the report but had dealings with him
in October 2021, finding that he had no mental illness. Nevertheless, he posed the
question whether a risk assessment order should be made.
[20]
The sheriff adjourned further and Dr Cumming produced a more detailed
report of 12 July 2022, having examined the appellant on 8 July. He was unable to
determine which parts of the appellant's accounts of his actions and intentions were
true and which were not. He recommended that advice on risk be sought from a
psychologist.
Psychology report on risk
[21]
In due course, an RMA
2
accredited risk assessor, Professor
Lorraine Johnstone, Consultant Clinical Forensic Psychologist, prepared a detailed
report in advance of a further adjourned diet in the Sheriff Court on 14 November
2022. She entitled her report "Risk assessment report", but it was not a report made
under section 210C. While it shared some features in common with such a report, it
omitted others and in particular there was no explicit consideration of whether the
risk criteria were or might be met.
[22]
Professor Johnstone noted that autism had been found to be a biological
vulnerability to being one of the rare people who become spree killers and that
violent fantasies are particularly relevant to violent behaviours. She explained that
2
Risk Management Authority
8
these judgments can be made retrospectively, but not prospectively. While such
factors were not predictive, she explained that the making of statements, research
and planning may be warning behaviours to acting out such fantasies.
[23]
Professor Johnstone found the appellant to be an unreliable informant with a
changeable presentation. She noted that, to her, he maintained that his accounts to
other professionals of killing animals, fantasising about killing people and going into
the woods and by the canal to find random people to kill were all untrue. He told
her that in the build up to these offences, he had been researching Elliot Rodger, an
American Incel inspired mass killer. She noted that he had also been reported to
admire other mass killers. She observed from the CJSWR that, while remanded, the
appellant had reported a desire to harm people and had prepared a mural in his cell
referring to mass killings.
[24]
Professor Johnstone noted that in her discussions with the appellant's social
worker she:
"... confirmed that the entire multi-disciplinary team were very
concerned social work, police and health. She said that the team had
adjudged his risk as high and she felt certain that if the opportunity had
arisen, he would have acted on his violent intention."
[25]
Professor Johnstone also noted from a police report that the assault in
charge 3 was preceded by the appellant making a threat to kill his victim. While it
was not clear whether that was narrated to the sheriff, it was relevant to the question
of risk with which the sentencing judge was concerned. She noted from the police
report that the appellant had items of concern within his home, including a hunting
knife.
9
[26]
Professor Johnstone offered a summary of her assessment in the following
terms:
"(The appellant) pled guilty to the index offences whereby he has threatened
to engage in a spree killing. Spree killing refers to the killing of several
people at different locations over a period of several days. His account of
his motivations to his offending (has) varied across time, place, and person.
This has included him stating that he believes this is his true purpose, him
having uncontrollable violent thoughts and urges, him feeling angry and
isolated, him having an interest and gaining some sort of intrinsic reward
from violence, to him making these statements purposefully to access
supports. It is difficult to know where the truth lies and whether it is one,
none or all of these given (the appellant's) unreliability. What is of note is
that he seemed to give well-rehearsed descriptions of his fantasies, he also
described plans with intent, and he identified several possible dates. In
addition, when he did have the opportunity to engage with services, he opted
not to do so. He offended whilst in a mental health ward and he deliberately
breached his community conditions. Furthermore, when in prison, he has
continued to pose a management problem - at least in the early phases of his
remand. Furthermore, he has been in possession of weapons and has given
conflicting accounts of where, why and how he came by these. More
recently, when police searched his home, they located a range of items that
could have been used to enact his fantasises; this is concerning. Thus, it
seems plausible - if not likely - that he was engaging in behavioural try-outs.
This is a particularly concerning aspect of his presentation because it can
underscore an escalation in risk whereby fantasies are no longer enough
to satisfy the unmet need. Some authors refer to this as a progression from
fantasies moving to cognitive rehearsals which, like fantasies, also diminish
over time and this is when the individual can seek to act on them."
[27]
Professor Johnstone reported a provisional diagnosis of autism spectrum
disorder. She observed that whilst the appellant fell short of a diagnosis of antisocial
personality disorder or psychopathic personality disorder, he showed some traits,
albeit they could be linked to his autism, and some sadistic traits.
[28]
Professor Johnstone provided a summary of the appellant's response to
support and supervision which was that he was essentially unwilling to cooperate
and engage with such services. She added:
10
"On reviewing the available information, (the appellant) has shown limited
capacity and motivation to comply with or benefit from supervision,
treatment, interventions and management either from mental health, police
or social work services ... I am not confident that he has a genuine motivation
for treatment and ... he seems to view treatment as something that should be
provided and done to him as opposed to him being an active agent in the
process."
[29]
A detailed risk assessment, HCR-20V3, was set out alongside a structured
assessment of protective factors, of which there were few. Professor Johnstone
discussed recent problems with violent ideation or intent, noted the appellant's
repeated disclosures and considered that his plans to harm others were feasible, but
also noted that he now said that he made up much of what he is reported to have
said in these respects. She concluded:
"On balance, I consider the nature, persistence and level of detail in his
narratives indicative of a real difficulty in this area. I am not convinced
this was for secondary gain nor am I convinced these have subsided. I
have therefore rated this item as present and relevant".
[30]
Risk scenarios were set out and he was considered to be at moderate to high
risk of assaulting someone causing moderate injuries and at moderate risk of causing
serious injury. In considering how likely it was that he would enact his plans to
murder someone, she reported:
"...Based on the data, whilst I do not believe this is an imminent risk
whilst he is detained but (the appellant) is at elevated risk and this scenario
will need proactively managed once he returns to the community..."
[31]
There should be ongoing risk assessment and supervision focussed on
eliminating situations which might indicate or elevate risk. The appellant would
need a comprehensive treatment plan for transitioning back to the community. His
attitudes towards violence, authorities, other people, weapons, extreme groups,
11
activities in the community, and women, would require to be monitored carefully
with any concerns addressed immediately.
Sentencing hearing in the High Court
[32]
Senior counsel appeared for the appellant and submitted that the sentencing
judge should not make a risk assessment order, but should impose a determinate
period of custody with post-custody supervision or an extended sentence. When the
judge enquired whether she was suggesting a supervised release order she
confirmed that she was not; it would not adequately address risk given the nature of
the offences and the material in the reports.
[33]
Senior counsel indicated her acceptance that while the offences might not be
the most serious offences of violence, in the context in which they occurred, the court
could view charges 2 and 3, as offences inferring personal violence whilst in
possession of a knife in the case of charge 2, bringing those charges into the scope of
offences of violence under and in terms of section 210A of the 1995 Act. She
conceded that a lengthy period of extension would be necessary in order adequately
to protect the public from risk of serious harm on the appellant's release and
acknowledged that protection of the public was a sentencing consideration in this
case which would justify a sentence of sufficient duration to render an extended
sentence competent.
[34]
Professor Johnstone had identified potentially effective treatment targets and
felt that they could be addressed and an effective plan of treatment could be
developed, albeit it would need to be adapted to accommodate the appellant's
autism. From Professor Johnstone's observations that an Order for Lifelong
12
Restriction might need to be revisited in the future, it was apparent that she did not
appear to consider it necessary at present.
The sentencing judge's reasons for the sentence imposed
[35]
Ultimately, even having regard to all of the information about the risk which
the appellant presented, the sentencing judge did not consider that he could
conclude that the risk criteria might be met. He considered that senior counsel had
identified a way of protecting the public by means of an extended sentence.
[36]
The sentencing judge recognised that these offences would not ordinarily
attract a High Court sentence. Nevertheless, when he considered all of the
information in the reports, including that about the appellant's professed intentions
and motivations along with the circumstances of the offences to which he had pled
guilty, the sentencing judge considered that charges 2 and 3, when viewed alongside
the other charges, did permit the court to impose a longer than normal sentence so as
to render competent an extended sentence. He indicated to senior counsel that while
those were the charges which justified an extended sentence, his provisional view
was that it would be appropriate to sentence cumulatively on all of the charges to
avoid the overall sentence being longer than necessary. She agreed.
[37]
The sentencing judge concluded that in order to protect the public from
serious harm he should impose an extended sentence with a 10 year period of
extension. From a starting point of a custodial term of 5 years and 6 months, he
discounted sentence for the plea of guilty to 4 years. Accordingly, he imposed an
extended sentence of 14 years with a 4 year custodial term and a 10 year extension
period, backdated to 18 February 2022.
13
The sentencing judge's comments on the grounds of appeal
[38]
The sentencing judge observed that the grounds of appeal were inconsistent
with the position adopted by senior counsel before him. The appellant maintained
that the headline sentence was excessive with regard to his age, limited criminal
record and mental health. He also complained that the extension period was
excessive, referring to his limited criminal record.
[39]
Viewed in isolation, the sentencing judge said that he would agree that the
headline sentence might appear excessive and that the extension period was unusual
in its (maximum) duration, particularly for someone with a very limited criminal
record. However, given all of the information before him he considered that
protecting the public from serious harm was a very pressing consideration in this
case requiring a substantial prison sentence with a lengthy period of extension. By
imposing a cumulo sentence, he ensured that the custodial term was no longer than
that which he considered necessary.
[40]
The sentencing judge explained that his conclusions were based on the
detailed reports of an experienced social worker, who reported also on the views of
her cross-agency colleagues and an RMA accredited risk assessor on whose detailed
report he had relied.
The appellant's submissions at the first hearing of the appeal
[41]
When the appeal first called before this court the appellant was not
represented by the senior counsel who had appeared at the sentencing hearing.
[42]
Ms Ogg, who now appeared for the appellant, accepted that a determinate
sentence was not appropriate given the appellant's behaviour and the reports before
14
the court. The argument in favour of a supervised release order was, she
acknowledged, a difficult one. It appeared nevertheless that the sentencing judge
had selected a starting headline sentence which after discount would result in a
custodial part of 4 years or more and thus allow the imposition of an extended
sentence. This approach was erroneous.
[43]
The offences would not normally attract a custodial sentence of 4 years or
more. To select a headline sentence of 5 years and 6 months given the nature of the
offences was excessive.
[44]
The appellant was nearly 25 at the date of the commission of the offences and
was 26 at the date of sentencing. He had four previous convictions occurring on two
occasions. The first was in 2017 for careless driving and no insurance for which he
was fined and admonished. There was no offending between 2017 and 2020. In 2020
he was admonished for failure to comply with a traffic direction and received a
Community Payback Order for driving with a controlled drug (cannabis) above the
specified limit. The appellant breached the CPO and a period of imprisonment was
imposed. It was acknowledged that the appellant had indicated that he had killed
and mutilated animals in the past, but there were no convictions for such behaviour
nor did there appear to be any independent evidence to confirm that. The
appellant's family were not aware of such behaviour. Neither the offences nor the
appellant's previous convictions merited the imposition of the headline sentence
selected.
[45]
The appeal raised the question of whether it was appropriate to impose a
sentence higher than the gravity of the offences and culpability of the appellant
required simply because there were concerns as to the possible future protection of
15
the public and because an extended sentence was felt to be the appropriate means of
dealing with that. This was not an appropriate approach. An offender should not be
penalised because deficiencies in the statutory provisions meant a deterrent custodial
sentence with the appropriate extended period of supervision was not available
unless an excessive or inappropriate sentence was imposed.
[46]
The concern of the sentencing judge was the protection of the public. The
various statements made by the appellant as to mass killings and about having killed
and mutilated animals caused particular concern. As Dr Cumming and
Professor Johnstone acknowledged, it was difficult to know where the truth lay. Did
the appellant make the statements regarding mass killings etc. because he believed
this was his true purpose or in an effort to live separately from his family and obtain
access to support? It was of note that Professor Johnstone considered that a
particularly difficult aspect of the case was that the appellant presented differently to
different people. The multi-disciplinary team who dealt with the appellant
considered his risk to be high. Police officers spoke positively of the appellant while
others did not. In addition to the statements made by him, the appellant assaulted
the complainer in charge 3, failed to adhere to bail conditions, was found in
possession of items of concern in his house and had behaved bizarrely in prison at
times.
[47]
During interviews with Professor Johnstone the appellant recognised that he
needed help. It was submitted that his behaviour is consistent with that. On one
view the cutting of his arm and the comments made at hospital were made to get
attention and his own accommodation. It was of note that Professor Johnstone
16
stopped short of suggesting that an Order for Lifelong Restriction was appropriate
and accordingly the risk criteria had not been met.
[48]
The appellant needed help and support. Having regard to the nature of the
offences, the nature of the appellant's previous convictions and the uncertainty as to
whether he was a fantasist or simply someone seeking help, a supervised release
order was appropriate, although it was recognised that the argument in favour of
such a sentence was not an easy one. If such a sentence was not appropriate but an
extended sentence was, then the custodial part of the sentence was correct. It was
submitted, however, that the imposition of the maximum extension period was
excessive. Given all the circumstances any period of licence the appellant was
released on could be supplemented by a lesser extension period and that would
protect the public from serious harm from the appellant.
Risk assessment order
[49]
The approach adopted before the court on behalf of the appellant at the initial
hearing of the appeal was in stark contrast to that taken before the sentencing judge.
At that stage the appellant's senior counsel had accepted that a supervised release
order was not appropriate, that an extended sentence was justified in the interests of
protecting the public, and that a lengthy extension period was necessary. Despite
this marked change of front, the court proceeded to give close consideration to the
submissions advanced for the appellant and to all of the detailed material contained
in the various reports and other papers at that stage of the case. Having done so, the
court considered that the risk criteria might be met and accordingly made a risk
assessment order. The court formed the provisional view that the nature and
17
circumstances of the offences to which the appellant pled guilty, when seen in the
context of all the other information put before the court, could demonstrate a
likelihood that the appellant would present a serious danger to public safety if at
liberty. The court noted, in particular, Professor Johnstone's opinion that it seemed
plausible - if not likely - that the appellant was engaging in behavioural try-outs.
This was a particularly concerning aspect of his presentation because it could
underscore an escalation in risk whereby fantasies were no longer enough to satisfy
his perceived unmet need.
[50]
The court continued the hearing of the appeal to allow Dr Marshall to prepare
a risk assessment report.
Dr Marshall's risk assessment report
[51]
Having carried out a comprehensive investigation and assessment,
Dr Marshall concluded that the appellant presented a high risk. There were
numerous risk factors for violence: history of violence, problems with anti-social
behaviour, personality disorder, traumatic experiences, violent attitudes, lack of
insight, violent ideation, mental disorder, instability, difficulties with treatment and
supervision, problems with professional services and plans, problems with his living
situation and personal supports and likely future problems with treatment and
supervision response.
[52]
A lone actor terrorism risk assessment was applied in the appellant's case
because of his idiosyncratic (grievance-based) beliefs about revenge on society for his
feelings of isolation, alienation, and loneliness.
18
[53]
Risk factors present in the appellant's case that were known to be linked to
lone actor terrorism were:
Pathway toward violence, which included planning, having a specific weapon
in mind, timeframes and locations, ideas of disposal of bodies, and referring
to mass killing;
Fixation Warning Behaviour, which included a consuming and chronic
obsession or preoccupation with serial killing in the past, giving way to later
spree killing, prior to the index offences and afterwards during supervision;
Novel Aggression referred to a new type of aggression or violence in the
appellant's background (e.g. assault on a vulnerable psychiatric patient);
Energy Burst, which was a burst of incongruous activity after being isolated
and withdrawn, which occurred when he left his home by bus to attend
hospital;
Leakage, such as telling professionals about mass killing;
Last Resort thinking, which involved having dates in mind on which to commit
an act of spree killing terrorism;
Personal Grievance, in the appellant's case the idea of spree killing was framed
by idiosyncratic reasoning; thwarting of occupational goals; changes in
thinking and emotions; and failure of sexual intimate pair bonding (or being
with a stable intimate partner);
Autism Spectrum Disorder and Depression;
Greater creativity and innovation, which involved previously trying to come up
with new ideas for an attack, such as the use of palindrome dates (dates that
are mirrored or can be reversed); and
19
Previous Criminal Violence.
[54]
All of these risk factors together showed that the appellant was far from
having had fleeting personal thoughts to do harm, with no action propensity risk
factors. Dr Marshall expressed the following view:
"Combined with his uncertainty, ambivalence, or `humming and hawing'
about whether to carry out an attack, (the risk) factors, if repeated in the
community in the future, will lead to a high likelihood of a mass killing
spree."
[55]
While the appellant denied some of the above risk factors, for example saying
that his fantasy for violence had ceased, he was an unreliable informant, changing
his accounts, engaging in impression management and often lying to professionals.
Additionally, he was not able to describe how he had shut down intensive,
absorbing, chronic violence fantasy immersion, with no support or treatment.
[56]
By the end of the assessment, the appellant reluctantly informed Dr Marshall
that he thought his level of intention to commit a major spree killing attack could
have gone either way. Dr Marshall was of the opinion that
"... his stepfather inadvertently finding a large knife well-hidden in his
bedroom might have averted a major spree killing attack in the Falkirk area.
Even if his fantasy for killing had reduced or ceased (which was doubtful),
Professor Johnstone and I both agree that the appellant would quickly revert
to his previous patterns of violent fantasy, ideation and planning if released
at the present time."
[57]
The appellant suffered from a rare combination of substantial autism
spectrum and psychopathic traits. He could switch between these
neurodevelopmental problems leading to: on the one hand, avoidance, isolation,
literalism, rumination, and social inadequacy; and on the other, manipulation, lying,
callousness and narcissistic ideas of being special. Psychopathy was a potential
enabler of violent ideas. Additionally, the appellant had a Schizoid Personality
20
Disorder, Paranoid Personality Disorder, Avoidant Personality Disorder, Borderline
and Narcissistic traits. He had extremely complex and enduring clinical needs and
risks. He also suffered from depression leading to nihilistic thinking. His lifelong
coping skills consisted of avoidance, isolation, cannabis abuse, and violent fantasy
immersion. Professor Johnstone remarked in Dr Marshall's meeting with her that he
had `no coping skills whatsoever'.
[58]
An assessment for strength-based protective factors found insufficient
protective factors to mitigate or deflect the appellant's risk trajectory. The appellant
told Dr Marshall in detail how he had always felt a "nobody" and had chronically
fantasized about being a "somebody" - by killing people in order to gain notoriety.
While he had not carried out an attack or been apprehended attempting to carry out
a spree killing attack, he was swithering over whether to do so, and with no pro-
social coping skills he was likely to fall back into that mind-set quickly. Importantly,
he was now demonstrating to himself that he had the capacity and willingness to act
violently. Recently, in prison, he had assaulted prison officers for instrumental gain.
[59]
A complex risk formulation attempted to track his emerging violent interests
from childhood to the tipping point in swithering to conduct a major spree (terrorist)
attack in the Falkirk area. There were several scenarios of risk in the Scenario
Planning risk assessment, the main one being a spree killing knife attack to enact
revenge on society for the perceived injustices in his life. There were other violent
scenarios in the report, beyond spree killing.
[60]
A detailed treatment and risk management plan, based on a re-socializing
strategy was provided by Dr Marshall for services to tackle critical risk factors such
as social skills, problem-solving, and violence reduction, as well as risk management
21
strategies to reduce the risk for future violence. This detailed prison and community
treatment and risk management plan would provide a roadmap for the appellant to
progress by lowering his risk.
[61]
Dr Marshall's conclusion was expressed in the following terms;
" (The appellant) has problematic, persistent, and pervasive characteristics
that are relevant to risk and which are not readily amenable to change. In his
case, moreover, the potential for change with time and/or intervention is
significantly limited due to the risk factors and formulation outlined. Without
changes in deep-rooted lifelong characteristics and better management of
neurodevelopmental problems (i.e., autism spectrum and psychopathy) (the
appellant) will continue to be immersed in violent fantasy and swither about
whether to act. Although other fantasies have come and gone, violent ideas
have been persistent, in different forms. As can be seen from the summary of
protective factors assessment above there are few or insufficient protective
factors to counterbalance these problems/characteristics. I am of the opinion
that the concerted long-term measures outlined below are indicated to
manage (the appellant's) risk, including restriction, monitoring, and
supervision. The nature of the difficulties outlined above with which he
presents are such that violence reduction interventions, problem-solving
training, social skill training and psychological therapy are unlikely to
mitigate the need for long-term monitoring and supervision. In the absence of
identified measures, (the appellant) has no positive coping skills and is highly
likely to revert to withdrawn, isolated grudge-bearing and violent fantasy,
then be uncertain on whether to choose to enact an attack or not. If the
conditions were `right' as per the risk factors and formulation identified, then
he is more likely than not to mount a lone actor terrorist attack based on his
idiosyncratic ideas. I, therefore, respectfully, recommend the Order for
Lifelong Restriction (OLR)."
Dr MacNab's risk assessment report
[62]
In carrying out her risk assessment, Dr MacNab consulted a wide range of
materials and interviewed a range of individuals. She consulted with Professor
Johnstone and also discussed the appellant's case at length with professionals from
Criminal Justice Services at Falkirk Council, who were involved in the appellant's
care while he was previously on bail supervision between October 2021 and
February 2022. It was apparent that both previous risk assessors (Professor
22
Johnstone and Dr Marshall) and others who had assessed the appellant within
community settings, all shared significant concerns about his risk and, crucially, his
manageability in the community.
[63]
The risk assessment process had highlighted the presence of a significant and
highly relevant number of risk factors that were known predictors of both general
violence and lone actor terrorism. Within the general violence risk assessment all
twenty risk factors were present and of relevance to the appellant's risk of future
offending and risk management. The threat assessment highlighted a number of risk
factors that were present during his time in the community, and which together
suggested that the appellant was on a trajectory towards, if not ready to act upon, a
plan to commit a major spree killing attack in Falkirk.
[64]
The appellant had recently been diagnosed with autism spectrum disorder.
He had experienced a significant number of difficulties associated with this disorder
in relation to social communication and interaction which had impacted on his
ability to function in many areas of his life; this alone was insufficient to explain his
violence. His attachment style and personality had been shaped by difficulties
within his earlier familial and wider social relationships and experiences. The
combination of his neurodevelopmental disorder and difficult experiences, including
his exposure to violence, as well as his likely engaging in violence himself at a young
age, had resulted in the presence of a range of problematic personality traits. He met
the criteria for an Antisocial Personality Disorder and had significant psychopathic
traits that were severe, pervasive and had a detrimental impact on his ability to
function in all areas of his life. As the demands of daily functioning had exceeded
his capacity, he had experienced low mood, immersed himself further in violent
23
fantasy and adopted a grievance thinking style, all of which had come together to
create `the perfect storm' and precipitated a chain of violent offences, there being
clear patterns within, that had led to his current situation.
[65]
There was an absence of protective factors. If the appellant were to return to
the community without significant treatment and gradual testing in the community
(as described in the Risk Management section of Dr MacNab's report) he would
likely revert quickly to his previous pattern of behaviour.
[66]
The risk management section of the report outlined a range of treatment,
supervision, and monitoring recommendations in reducing the appellant's risk.
Given the combination of autism, and pervasive and severe personality traits (which
included psychopathic and sadistic traits) it was recommended that the appellant be
provided with a level of specialist care and treatment that would address his needs
and provide him with the opportunity to progress towards community living.
Consideration should be given to where his care and treatment should be provided,
to provide a quality of living in the context of his autism diagnosis and relatively
young age. A clear treatment plan and pathway was recommended to ensure that he
was not subject to detention for longer than was necessary. The appellant would
require a significant level of supervision and monitoring and recommendations were
provided in the report.
[67]
Dr MacNab expressed her conclusion on the risk presented by the appellant
as follows:
"I consider there is a real likelihood that (the appellant) may cause further
serious harm either to himself or other people if he was to be returned to the
community given the presence and significance of the risk factors identified
and that there are very few protective factors in his case to mitigate this risk. I
am not optimistic that he has the capacity to respond to treatment given his
24
limited response to previous community intervention offered. He has had
significant problems with supervision in the past, and I think that he will
require long term restrictions to minimise the risk of serious harm to other
people.
On balance, I am of the view that (the appellant's) risk is High. The nature,
seriousness, and pattern of (the appellant's) behaviour indicate a propensity
to seriously endanger the lives, physical, or psychological well-being of the
public. Whilst he did not actually carry out his plan to spree kill between 2021
and 2022, there are highly concerning features within his behaviour in that
period i.e. the `kit' that was found in his flat, including a 3
rd
knife, and his
ongoing self-report of plans to kill. He has repeatedly and consistently
admitted to having had violent fantasies (for over 9 years) and has
communicated detailed plans to commit mass murder over an extended
period. He has also admitted to try-outs that have only failed to succeed
because victims did not present themselves. He has assaulted a vulnerable
peer whilst in hospital and perpetrated further interpersonal violence in
prison. He has used his own blood to express himself, this being whilst he has
been under supervision and contained. It requires to be assessed as to
whether he may be amenable to change and manageable with appropriate
measures, but this needs to be tested out within a secure setting, as does his
capacity and willingness to engage. Given his past CPO and bail supervision
failures, his amenability to supervision requires also to be tested out
carefully."
The appellant's revised notice of objection
[68]
In a revised notice of objection tendered for the continued hearing of the
appeal it was stated that no challenge was taken to the assessment that the appellant
was high risk. That accorded with the assessment by Dr MacNab.
[69]
Objection was nonetheless taken to the content and findings of Dr Marshall's
report. He had erred in recommending that an OLR should be imposed. He had
given insufficient weight to the length of the extended sentence imposed by the
sentencing judge and had failed to consider whether at the end of the extended
sentence or after the expiry of the custodial part of the sentence it could be said that
serious endangerment was more likely than not to occur or would occur (Ferguson v
25
[70]
It was submitted that Dr Marshall had given insufficient weight to a number
of factors: the appellant's limited record of non-analogous previous convictions and
that fact that he had no convictions for harming animals or people; the nature of the
index offences and, in particular, his attendance at hospital to seek assistance; the
appellant's repeated requests for mental health assistance and support; the progress
the appellant was now making within the prison where he was assessed as medium
risk and was in employment; and the terms of Dr MacNab's report and in particular
her view that the appellant would benefit from therapeutic work in relation to his
risk formulation.
[71]
A letter dated 19 January 2024 from HM Prison Low Moss was produced to
the court. This stated that the appellant was a medium supervision level and was in
employment with the timber machine sheds.
The appellant's oral submissions
[72]
In her oral submissions at the continued hearing of the appeal Ms Ogg said
that the appellant now accepted that the extended sentence imposed by the
sentencing judge was appropriate. She invited the court simply to refuse the appeal
and not to make an order for lifelong restriction. Under reference to Ferguson v HM
Advocate 2014 SCCR 244 she observed that the views expressed by the risk assessors
were not binding on the court; it had to reach its own decision.
[73]
There was no reason to suppose that the appellant was anything more than a
fantasist; the assessors were correct to evince scepticism about his accounts. He had
only a limited number of non-analogous previous convictions. The assault referred
to in charge 3 had to be seen in its full context; the victim had made aggressive
26
gestures towards the appellant. There was no objective evidence showing that the
appellant had harmed animals. The reason he had attended Forth Valley hospital
had been to seek assistance for his mental health problems. The sentencing judge had
imposed a carefully structured extended sentence. Therapeutic work could be done
with the appellant within the framework of the extended sentence.
Crown submissions
[74]
In view of the importance of the case the court invited the Crown to make
written submissions. Contrary to the appellant's suggestion, it was not for the
assessors to attempt to assess risk at specified future dates. The task of assessing
future risk was, in the final analysis, a matter for the court at the time of imposing
sentence.
[75]
Dr Marshall had taken account of the nature and extent of the appellant's
previous convictions and of the whole circumstances of the offences on the present
indictment. He recognised that the appellant had a tendency to lie and to be
inconsistent in his accounts, but he concluded that the appellant had been honest
when he said that he had thought about wanting to kill other people since he was 17
years of age.
[76]
Dr MacNab noted in her report that the appellant had had several mental
health referrals while he was in prison. Whatever risk classification had been
assigned to the appellant by the prison authorities was of little moment. The basis on
which any such assessment had been made was not known. Both risk assessors had
carried out extensive investigations and had concluded that the appellant posed a
high risk to the safety of the public at large while at liberty.
27
Decision
[77]
Section 118(4)(b) of the 1995 Act provides that the court may dispose of an
appeal against sentence by:
"if the Court thinks that, having regard to all the circumstances . . . a different
sentence should have been passed, quashing the sentence and passing
another sentence whether more or less severe in substitution therefor ..."
[78]
This is a case where the court is in no doubt that the public interest requires it
to exercise the power set out in section 118(4)(b). It is clear from the comprehensive
risk assessments carried out by Dr Marshall and Dr MacNab (and from the other
detailed and extensive information furnished to the court) that the appellant presents
a particularly high risk to public safety. Numerous risk factors have been identified.
There are very few protective factors. He has been assessed as presenting a high risk
of carrying out a killing spree or mass murder and of acting as a lone terrorist. There
is evidence that he took serious steps to prepare for committing such an attack. He
has used violence in the past. He has fantasised over many years about committing
mass murder. There is evidence that he should not be considered a fantasist and, on
at least one occasion, might have been close to realising his aim. There is no prospect
of his being managed safely in the community at the present time. The risk is such
that it will not be materially mitigated by an extended sentence, particularly given
that the appellant has limited capacity or motivation to comply with appropriate
management. He will require close management, supervision and treatment in
prison for the foreseeable future. It may never be safe to release him. The court is
entirely satisfied that the risk criteria are met and that an order for lifelong restriction
must be made. That sentence constitutes a sentence of imprisonment for an
indeterminate period (section 210F(2)).
28
[79]
The court will quash the extended sentence imposed by the sentencing judge
and substitute for it an order for lifelong restriction. The applicable legislation
requires the court to set a minimum period which the appellant must spend in
custody before he is entitled to apply to the Parole Board to be released on licence
(Prisoners and Criminal Proceedings (Scotland) Act 1993 sections 2, 2A and 2B). This
period, known as the punishment part, is intended to satisfy the requirements of
retribution and deterrence. Had the court been imposing a determinate sentence it
would have been a cumulo extended sentence identical to that imposed by the
sentencing judge. On such a hypothesis the element of public protection would have
been addressed by the extension period. In accordance with the legislative scheme,
the punishment part falls to be determined by taking one half of the custodial term or
such greater proportion of that period as the court specifies having regard to certain
factors, none of which applies in the circumstances of the present case. Therefore the
punishment part in the appellant's case is to be 2 years. The sentence will be
backdated to 18 February 2022.
[80]
We would emphasise that the punishment part is certainly not to be taken as
reflecting or implying the court's view as to the period which the appellant should
actually serve in custody. It is merely the statutory minimum period which he must
serve before he can apply to the Parole Board for Scotland for release on licence.
Whether and on what conditions the appellant might eventually be released after the
minimum period of his sentence are matters for the Parole Board to determine.
BAILII:
Copyright Policy |
Disclaimers |
Privacy Policy |
Feedback |
Donate to BAILII
URL: http://www.bailii.org/scot/cases/ScotHC/2024/2024_HCJAC_8.html
