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Scottish High Court of Justiciary Decisons

You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> JOHNSTONE v. HER MAJESTY'S ADVOCATE [2011] ScotHC HCJAC_66A (05 July 2011)
Cite as: 2011 SCCR 470, [2011] ScotHC HCJAC_66A, 2012 JC 79, 2011 GWD 24-552, 2011 SLT 1257, 2011 SCL 825, [2011] HCJAC 66A

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Lord Justice Clerk

Lord Drummond Young

Lord Bracadale











[2011] HCJAC 66A

Appeal No: XC774/09






in appeal by












Appellant: MacLeod, QC, Hughes; Jim Friel & Co.

Respondent: Wolffe, QC, AD; Crown Agent


5 July 2011


[1] The appellant appeared on indictment at Glasgow Sheriff Court on 31 October 2008 and the guilty to the following charges:

"(1) between 1 January 2006 and 9 July 2008,... at [specified addresses in Glasgow], you did conduct yourself in a disorderly manner and did pursue a course of conduct which amounted to harassment of a person, namely, a medical practitioner, Doctor AB,... and did:

(a) on various occasions between 1 January 2006 and 9 July 2008... at [the same specified addresses] you did take video recordings or similar and photograph images of said Doctor AB without her knowledge or consent and store same on your computer;

(b) on 5 February 2008 you did follow said Doctor AB to her home address... and did deliver a package addressed to her containing an anonymous handwritten note and brooches through the letterbox of her home;

(c) on 12 February 2008 at [an address in a health centre] you did enter an office used by said Doctor AB and did steal a key belonging to her;

(d) on 29 February 2008 at Stobhill Hospital, Glasgow, you did steal 2 wing mirrors and 3 wiper blades from motor vehicle registered number... belonging to said Doctor AB;

(f) on 9 July 2008 at [an address in a health centre] you did steal 2 wing mirrors and 3 wiper blades from said motor vehicle belonging to said Doctor AB;

and you did thus harass said Doctor AB and did place her in a state of fear and alarm for her safety and did commit a breach of the peace;



(3) on 14 July 2008 at [the appellant's home address] you did have in your possession without the authority of the Secretary of State a prohibited weapon, namely, 5 gas canisters designed or adapted for the discharge of a noxious liquid, gas or thing, namely, pepper spray; CONTRARY to the Firearms Act 1968, Section 5(1)(b) as amended by the Transfer of Functions (Prohibited Weapons) Order 1968".

[2] The case proceeded on an agreed narrative. The appellant was 32 at the time of sentence. He had been unemployed and in receipt of state benefits. He had no previous convictions. He had a medical history involving mental health problems. As a result of these problems, he became a patient of the complainer, Dr AB, who is a clinical psychologist, in the latter part of 2006. He met her every two weeks within a health centre, and during a period when he was admitted to Stobhill Hospital she also saw him. She was treating him for mental health issues including a possible personality disorder, obsessive compulsive disorder and possible schizophrenia. At one of his early sessions the appellant had asked Dr AB for help with his camera phone and then apparently proceeded to take a photograph of her. On 5 February 2008 Dr AB noticed a package that had been put through the letterbox of her home, addressed to her. It appeared to have been delivered by hand. It contained three boxes each with a brooch of a wildlife figure, with a note that did not give the sender's name. This caused her some alarm, and she spent some time establishing that no one that she knew had sent her the package. She saw the appellant later in the day and noticed that he was behaving in an unusual manner. Thereafter she consulted with her superior and it was decided that Dr AB should not continue to treat the appellant. On 12 February Dr AB's superior saw the appellant looking into Dr AB's office, and when the appellant realised that he was being observed he behaved in a strange manner. On 26 February Dr AB told the appellant that, because of the package that she had received, she was ending all contact with all of her patients; this was a story that she had agreed with her superior because she did not want to isolate the appellant specifically and thus make him feel paranoid. The appellant stated that he knew that Dr AB was ending contact with him in any event.

[3] On 29 February 2008 Dr AB's car, which was parked in the car park next to the psychology unit at Stobhill Hospital, had both wing mirrors and its wiper arms and blades removed. Dr AB was very distressed by the incident. That evening two police constables interview the appellant, but he denied being in the grounds of Stobhill Hospital at the relevant time and causing damage to any vehicle there. At that stage there was no evidence to charge the appellant with any offence and he was warned regarding any further contact with Dr AB. On 2 April 2008 the appellant was admitted to the psychiatric unit at McKinnon House, Stobhill Hospital, and, following treatment, he was discharged on 21 April. During further treatment by Dr AB's superior he made negative remarks which were understood as referring to Dr AB. On 9 July 2008 two community mental health nurses called at the appellant's home, and were let in. They noticed that the appellant had a picture of Dr AB as the background of his computer screen. The photograph appeared to have been taken as she was writing on her desk. Later that day Dr AB was told by her superior that there was an image of her on the appellant's computer. At this point she began to shake, went extremely pale and covered her face with her hands and began hyperventilating. She became extremely tearful. Her superior thought that she was in shock. At about 5 p.m. Dr AB went to her car, which was parked in the street, and found that both wing mirrors and windscreen wipers had been removed once again. She began to hyperventilate and started to cry.

[4] Two police officers attended at the appellant's home on 11 July, and found four electric wing mirrors and six windscreen wipers in the hall cupboard, which had been left open. Thereafter the appellant was detained. He was searched and found to be in possession of a key. This was subsequently found to be the key of Dr AB's house. In the appellant's house the police also discovered five canisters of pepper spray, adapted for its discharge. The appellant's computer was subsequently examined, and a disc was discovered which showed images, including moving images. 1,112 images related to Dr AB, her vehicle and her home address. Her name, and the name of another woman whom the appellant had known slightly in the past, appeared on some of the images. Some images included statements of a sexual nature made by the appellant relating to Dr AB.

[5] After the appellant pled guilty, the case was adjourned for reports, and in the light of these the sheriff formed the view that a lifelong restriction order might be appropriate. He accordingly remitted the case to the High Court for sentence. The case called in the High Court on 9 March 2009. The judge, Lord Malcolm, made a risk assessment order, on the basis that the criteria set out in section 210B(1) and (2) of the Criminal Procedure (Scotland) Act 1995 might be met. A risk assessment report was in due course obtained from Dr Rajan Darjee, a consultant forensic psychiatrist, and the defence obtained reports from Dr John Baird, who is also a consultant forensic psychiatrist, Dr Caroline Logan, who is a consultant forensic clinical psychologist, and Professor Mike Nellis, Professor of Criminal and Community Justice at Glasgow School of Social Work, University of Strathclyde. In due course evidence was led from Dr Darjee, Dr Baird and Dr Logan, and also from the appellant himself. All four of the professionals involved, Drs Darjee, Logan and Baird and Professor Nellis, ultimately concluded that the appellant presented a high risk to the public; Dr Baird had initially considered that he presented a medium risk, but had revised that opinion in the light of certain further information that was made available to him about the possession of indecent images of children on the appellant's computer.

[6] It is not necessary for present purposes to set out the details of the various reports and the evidence of their authors. It is clear that in each case the author of the report conducted very detailed inquiries into the appellant's condition. In summary, Dr Darjee concluded that there was a high likelihood of recurrent or persistent stalking behaviour towards the victim or perhaps other females. Such stalking behaviour was likely to lead to long-term psychological distress and social disruption for the victim. The risk of potential escalation to physically harmful behaviour needed to be managed. Dr Darjee indicated that the appellant demonstrated a number of risk factors, and that, although he did not have a history of previous serious violence or offending, there were few protective factors identifiable at present. As a result, a robust set of monitoring and supervision arrangements would be required. Overall, Dr Darjee's conclusion was that, if at liberty, the appellant posed a high risk to the safety of the public at large. Dr Baird ultimately concluded, by a narrow margin, that the appellant posed a high risk to the safety of the public at large, and presented an ongoing risk of committing an offence causing serious harm. There were few protective factors; the appellant was preoccupied with his victim, angry that she had rejected him and obsessed by her. His mental health was poor; he was psychotic and paranoid, and had no intimate relationship or supportive non-intimate relationships. He was abusing substances heavily and was unemployed. Thus there were few, if any, protective factors to mitigate the risk. He presented a risk to any woman who might for any reason have contact with him over a period, and presented a significant but indirect risk towards children. Consequently he required long-term risk management, including supervision and, if he had the capacity to respond, continuing treatment. Dr Logan concluded that the appellant met the criteria for high risk as defined by the Risk Management Authority. In particular, there was a high risk that he would stalk or obsessionally harass women in the future, including women involved in his treatment and management, and possibly also the past victims of his stalking activity. She attached particular significance to the fact that the appellant was an intimacy seeking stalker and stalked professional carers; she also referred to intrusive and sinister following of the victim, information gathering about her and sexual interest in her. Finally, Professor Nellis, whose report was considered by the court, expressed the view that the appellant was at high risk of committing a further offence, although he had some concerns about the proportionality of a lifelong restriction order given the nature of the offence for which the appellant was to be sentenced.

[7] The sentencing judge noted the evidence of the appellant. He stated that he had no continuing interest in the complainer and regretted his actions towards her. He accepted that what he did was wrong. He stated that he had taken the complainer's key as a memento, had taken her photograph because she was attractive, and damaged her car because she had reported matters to the police. He had never previously been in trouble with the police.

[8] After considering the expert report and the evidence led before him, the sentencing judge imposed a lifelong restriction order. In relation to the expert reports, he observed that he thought that Dr Baird's original classification of the appellant as presenting a medium risk of future harm was influenced by what he saw as the lack of seriousness of the index offence, as opposed to a judgment as to the risk of harm in the future. The judge accepted the evidence of Drs Darjee and Logan; his view was that they adopted a rigorous and structured approach in line with proper professional practice, and he found their reports, their evidence and their reasoning powerful and convincing. The judge recognised that some might have a concern about the imposition of an order for lifelong restriction in the case of a first offender who had not previously committed an offence involving any direct violence; nevertheless, he was fully satisfied that the crime had a very serious impact on the complainer, and that it would be wrong to minimize its seriousness. On that basis the judge described his task as simply deciding whether on a balance of probabilities the risk criteria set down in section 210F of the Act were satisfied. Those criteria are that the nature of all the circumstances of the commission of the offence of which the convicted person has been found guilty, either in themselves or as a pattern of behaviour, are such as to demonstrate that there is a likelihood that he, if at liberty, will seriously endanger the lives or physical or psychological well-being of members of the public at large. The judge had no difficulty in concluding that those criteria were met. On that basis he considered that he had no discretion, in terms of section 210F, other than to impose an order for lifelong restriction.

[9] The judge set the punishment part of the appellant's sentence on the basis of a starting point of four years. This was reduced to three years in view of the guilty plea, and to 18 months because of the early release provisions relating to determinate sentences. The sentence was backdated to 17 July 2008. No appeal is taken against the punishment part of the sentence.

[10] An appeal was lodged, challenging the imposition of the order for lifelong restriction. The first ground of appeal was that the imposition of an order for lifelong restriction in respect of a conviction under the Firearms Act 1968 as amended, in terms of charge (3), was incompetent. Such an order amounted to a penalty which exceeded the maximum laid down in the 1968 Act for the contravention in question. The Firearms Act 1968 was United Kingdom legislation and was a matter reserved to the United Kingdom Parliament by Schedule 5 to the Scotland Act 1998. It was accordingly outwith the legislative competence of the Scottish Parliament to pass legislation that had the effect authorising the making of an order for lifelong restriction on an offender convicted under section 5(1)(b) of the 1968 Act and overriding the penalty provisions made in that Act. A similar argument was conceded by the Crown in Henderson v HM Advocate, 2010 SCCR 909, and that concession was renewed in the present case, albeit under reservation of the Crown's position in any future case in the United Kingdom Supreme Court. In view of that concession we do not require to consider this ground of appeal further. It is a matter of agreement that it does not affect the competency of the order for lifelong restriction in respect of charge (1).

[11] Two further grounds of appeal were argued: first, that the imposition of an order for lifelong restriction was incompetent because, following amendment in 2005, the legislation was ineptly drafted and failed for lack of clarity; and secondly, that the order was tantamount to a form of "preventive detention" and was accordingly invalid under article 5(1) of the European Convention on Human Rights.


The form of the legislation: section 210F of the Criminal Procedure (Scotland) Act 1995 as amended by section 14 of the Management of Offenders etc (Scotland) Act 2005


[12] Section 210F of the 1995 Act is part of a series of provisions introduced by section 1 of the Criminal Justice (Scotland) Act 2003 to enable the imposition of orders for lifelong restriction. Section 210F is designed to set out the court's power to make such an order. In its original form it provided as follows:

"210F Order for lifelong restriction

(1) The High Court, at its own instance or on the motion of the prosecutor, if it is satisfied, having regard to-

(a) a risk assessment report submitted under section 210C(4) or (5) of this Act;

(b) any reports admitted by virtue of section 210D of this Act;

(c) any evidence given under section 210C(7) of this Act; and

(d) any other information before it,

that, on a balance of probabilities, the risk criteria are met, shall make an order for lifelong restriction in respect of the convicted person.

(2) An order for lifelong restriction constitutes a sentence of imprisonment, or as the case may be detention, for an indeterminate period".

That section was amended by section 14 of the Management of Offenders etc (Scotland) Act 2005. The amendments were intended to cater for the situation in which a mentally disordered offender who had been convicted of a sexual or violent offence and was deemed to present a continuing risk to the public met both the criteria for compulsory imposition of an order for lifelong restriction in terms of sections 210E and 210F of the 1995 Act and the criteria under section 57A of the Act for a compulsion order. Section 14 of the 2005 Act is in the following terms:

"(1) The Criminal Procedure (Scotland) Act 1995 (c. 46) is amended as follows.

(2) In section 210F(1) (making of order for lifelong restriction) --

(a) in paragraph (a), for the word 'a' substitute 'any';

(b) for the words from 'shall' to the end substitute ', in a case where it may make a compulsion order in respect of the convicted person under section 57A of this Act, either make such an order or make an order for lifelong restriction in respect of that person and in any other case make an order for lifelong restriction in respect of that person.'

(3) The title of section 210F becomes 'Order for lifelong restriction or compulsion order'."

[13] The feature of the 2005 Act on which the appellant founds is the expression, used in section 14(2), "for the words from 'shall' to the end substitute". That involves a deletion and a substitution. The meaning of the expression, it was submitted, was that the passage deleted began with the word "shall" and continued to the end of the subsection. In other words, the words "from 'shall'" meant that the deletion included the word "shall", which was, of course, the verb in section 210F(1). That rendered the subsection meaningless; read short, it would provide as follows:

"The High Court..., if it is satisfied... that, on a balance of probabilities, the risk criteria are met,, (sic) in a case where it may make a compulsion order..., either make such an order or make an order for lifelong restriction in respect of that person and in any other case make an order for lifelong restriction in respect of that person".

We observe that, read literally, such a provision is plainly inept. It lacks a proper verb and the repeated comma after "are met" is absurd.

[14] Nevertheless, the word "from" is capable of meaning either "from and including" or "after". If the word is used in the latter sense, and the expression "from 'shall'" as used in section 14(a) of the 2005 Act is taken to mean that only the words after "shall" are to be deleted, section 210F(1) would make sense. In that event it would read:

"The High Court..., if it is satisfied... that, on a balance of probabilities, the risk criteria are met, shall, in a case where it may make a compulsion order..., either make such an order or make an order for lifelong restriction in respect of that person and in any other case make an order for lifelong restriction in respect of that person".

[15] In this connection we were referred by the Crown to paragraph 15(1) of the Scotland Act 1998 (Transitory and Transitional Provisions) (Publication and Interpretation etc. of Acts of the Scottish Parliament) Order 1999 (SI 1999 No. 1379). This provides as follows:

"Where an Act of the Scottish Parliament describes or cites a portion of an enactment by referring to words, sections or other parts from or to which (or from and to which) the portion extends, the portion described or cited includes the words, sections or other parts referred to unless the contrary intention appears".

Thus when a portion of another Act is referred to by use of the formula "from [a specified word]", the presumptive rule is that the passage referred to includes the specified word, but this is only a presumption and it will be displaced if a contrary intention appears. In the present case, therefore, the presumptive rule is that the word "shall" is part of the deleted passage, but that will yield to a contrary intention. In our opinion it is quite clear in this case that the intention was that the presumption should be displaced, and that the intention of Parliament was that the word "shall" should not be deleted.

[16] That inference can be drawn from the fact that the provision does not make grammatical and linguistic sense if "shall" forms part of the deletion but it does make sense if "shall" is not deleted. That is not, however, the only indication that "shall" should not be deleted. Both the Explanatory Notes to the 2005 Act and the relevant ministerial statement to the Justice 2 Committee of the Scottish Parliament support the construction that we have adopted. If the wording used in the 2005 Act is regarded as ambiguous, it is proper to refer to both of these as aids to construction.

[17] The Explanatory Notes to the 2005 Act state, at paragraph 96:

"Section 210F requires a court, in certain circumstances, to make an Order for Lifelong Restriction, a sentence intended for high risk violent and sexual offenders who meet the risk criteria set out in section 210E. If, following a risk assessment, the court is of the view that the risk criteria are met, it has no option but to make an Order for Lifelong Restriction. However there may be circumstances where a high risk mentally disordered offender who meets the risk criteria is also suffering from a mental disorder that meets the criteria for a compulsion order under section 57A of the Act. ... In these circumstances, the Court should be able to impose a mental health disposal. The amendment made by section 14 therefore ensures that where a mentally disordered offender meets both the risk criteria for an OLR and the criteria for a compulsion order the court should have the choice between these two disposals".

That note indicates that there was no intention to remove the existing requirement that, if the risk criteria were met and there was no requirement for a compulsion order, the court should be obliged to impose an order for lifelong restriction. We were in addition referred to a statement made by the Deputy Minister for Justice to the Justice 2 Committee when section 14(1) of the 2005 Act was under consideration by the Scottish Parliament (Justice 2 Committee Official Report, 27 September 2005, col. 1678). This made it clear that the intention was that, in the small number of cases where an offender met the criteria for an order for lifelong restriction and the criteria for a mental health disposal, the High Court should have the choice of which route to take, on the basis of the reports before it. The existing terms of the 2003 Act, however, were such that, if the offender met the criteria for an order for lifelong restriction, the court had no option but to impose it. The amendment was designed to correct that difficulty.

[18] For the foregoing reasons we reject the appellant's first ground of appeal. We should add that we were also addressed by counsel on the power of the court to correct obvious drafting errors. Such a power was recognised in Inco Europe Ltd v First Choice Distribution, [2000] 1WLR 586. That case was approved in the Inner House in Scottish Water v Clydecare Ltd 2003 SC 330; and has been followed in the Outer House in Aberdeen City Council v Wokoma 2002 SLT 878, and in the Inner House in BP Oil (UK) Ltd v City of Edinburgh Licensing Board 5 April 2011 [2011] CSIH 29. In Inco Lord Nicholls stated (at 592C-F):

"It has long been established that the role of the courts in construing legislation is not confined to resolving ambiguities in statutory language. The court must be able to correct obvious drafting errors. In suitable cases, in discharging its interpretative function the court will add words, or omit words or substitute words.... This power is confined to plain cases of drafting mistakes. The courts are ever mindful that their constitutional role in this field is interpretative. They must abstain from any course which might have the appearance of judicial legislation".

On occasion, however, even in a clear case, the court may not be able to correct an obvious drafting error. One example given by Lord Nicholls (at 592H) is where the subject matter may call for a strict interpretation of the statutory language, as in penal legislation. In R (Kelly) v Secretary of State for Justice, [2009] QB 204, Laws LJ, delivering the principal opinion of the Court of Appeal, observed (at 218H-219A):

"If I considered in the present case that judicial modification of the statutory instrument, following the Inco Europe case, would have effect to deprive the claimants or anyone else of settled rights of liberty enjoyed by them, I would decline to take such a course".

That did not apply in the case under consideration, however, where the issue was whether the statutory provisions that permitted the claimant's release on licence had been inadvertently repealed; in that event, it was argued, the release would require to be treated as outright rather than on licence. Thus the case is not authority that a properly penal statute can be corrected. Yet a further case in which the correction of a drafting error was considered in a criminal context is Haw v City of Westminster Magistrates' Court, [2008] QB 888, where a legislative provision that appeared to have repealed the right of appeal from a magistrates' court to the Crown Court in proceedings for contempt of court was construed in such a way as to permit the continuance of such a right, as that was plainly the intention of Parliament. The case is accordingly not authority for the proposition that an obvious error in penal legislation may be corrected by a court, because what was involved was a provision of a wholly procedural nature. So far as the present case is concerned, we do not require to consider this line of authority further, because the matter is covered by the 1999 Order. Nevertheless, we should not be taken as holding that an error in the drafting of a penal statute may be corrected by the courts, even in a clear case.


The impact of article 5(1) of the European Convention on Human Rights

[19] The second argument advanced on behalf of the appellant was based on article 5(1) of the European Convention on Human Rights, which provides as follows:

"Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;


(c) the lawful... detention of a person... when it is reasonably considered necessary to prevent his committing an offence ...".

[20] For the appellant it was submitted that the imposition of an order for lifelong restriction is tantamount to a form of "preventive detention", notwithstanding the statement in section 210F(2) of the 1995 Act that such an order constitutes a sentence of imprisonment for an indeterminate period. The argument was that, while article 5(1) of the Convention might justify such preventive detention, this must be read subject to certain statements made by the European Court of Human Rights in M v Germany (2010) 51 EHRR 41. Preventive detention is permissible under article 5, and measures to that effect are found in several Convention states (paragraphs [70]-[74]). Nevertheless, any detention must be in accordance with the second sentence of article 5(1), a point which the European Court of Human Rights described as follows (paragraph [90]):

"[Article 5(1)] primarily requires any arrest or detention to have a legal basis in domestic law but also relates to the quality of the law, requiring it to be compatible with the rule of law, a concept inherent in all the articles of the Convention. 'Quality of the law' in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness. The standard of 'lawfulness' set by the Convention thus requires that all law be sufficiently precise to allow the person -- if need be, with appropriate advice -- to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail".

The same point, it was said, was made in Bennion on Statutory Interpretation, 5th edition, 2008, at 799: "It is a principle of legal policy that law should be certain, and therefore predictable". In the present case, the appellant could not foresee that his offence could entail his preventive detention for an unlimited period of time (as in M v Germany at paragraph [104]). That had the consequence that the act of the Lord Advocate in continuing to resist the present appeal against the sentence of an order for lifelong restriction amounted to an act incompatible with the appellant's Convention rights under article 5(1). Thus it was ultra vires under section 57(2) and (3) of the Scotland Act 1998 and section 6(1) of the Human Rights Act 1998.

[21] In our opinion the argument presented for the appellant under article 5(1) must fail. The case law, both in the European Court of Human Rights and in the United Kingdom, establishes that an order for preventive detention is permissible under article 5(1); that appears not only from M v Germany but also from the earlier decision of the Court in Van Droogenbroeck v Belgium, (1982) 4 EHRR 443, and from the English decision of the House of Lords in R (Walker) v Secretary of State for Justice, [2010] 1 AC 553. This is, however, subject to four important qualifications. In the first place, for a sentence of preventive detention to be valid it is essential that there should be a sufficient connection between the conviction of the accused for a specific criminal offence and the order for preventive detention: Van Droogenbroeck at paragraph [39]; M v Germany, at paragraphs [86]-[88]. In the latter case the principle is expressed as follows (paragraphs [87]-[88]):

"For the purposes of subpara. (a) of art. 5(1), the word 'conviction'... has to be understood as signifying both the finding of guilt after it has been established in accordance with the law that has been an offence, and the imposition of a penalty or other measure involving deprivation of liberty.

Furthermore, the word 'after' in subpara. (a) does not simply mean that the 'detention' must follow the 'conviction' in point of time: in addition, the 'detention' must result from, follow and depend upon or occur by virtue of the 'conviction'. In short, there must be a sufficient causal connection between the conviction and the deprivation of liberty at issue".

[22] In the second place, any sentence that amounts to preventive detention must be made in accordance with rules of domestic law which are "sufficiently accessible, precise and foreseeable in [their] application, in order to avoid all risk of arbitrariness": M v Germany, at paragraph [90], quoted above at greater length. In the third place, the continuation of preventive detention requires that the original objectives of the sentencing court should continue to operate. This point was made by Lord Hope of Craighead in Walker (at paragraph [12]):

"The situation changes as soon as the prisoner has served the minimum term [equivalent to the punishment part], which is the measure of his punishment. As the Strasbourg court pointed out in Weeks v United Kingdom (1987) 10 EHRR 293, para 49, the causal link required by article 5(1)(a) might eventually be broken if a position were to be reached in which a decision not to release or to re-detain was based on grounds that were inconsistent with the objectives of the sentencing court. The objective that justifies continued detention at this stage is public protection. The sentencing judge makes no assessment of the extent to which, if at all, the prisoner will represent a danger to the public once he has served the minimum term. That matter is left entirely to the determination of the Parole Board. It is for the Board to assess whether the causal link with that objective that is required by article 5(1)(a) remains in place or has been broken because it is no longer necessary for the prisoner to be confined".

It follows that, if any sentence amounting to preventive detention is imposed, it is imperative that it should be reviewed regularly by a body such as the Parole Board to ensure that the safety of members of the public requires the continued detention of the prisoner. That judgment must be made in accordance with the considerations that led initially to the sentence of preventive detention. Thus the Parole Board must ensure that continued detention is justified by considerations of risk and dangerousness: ibid at paragraph [13]. In the fourth place, during a period of preventive detention, the prison authorities must ensure that courses and training are available to enable the prisoner to address, if he can, the risk factors that led to the sentence and to provide the Parole Board with evidence about the prisoner's current condition: Walker, at paragraph [26] per Lord Brown of Eaton-under-Heywood and paragraph [121] per Lord Judge CJ.

[23] In the present case the application of the third and fourth of these principles is not challenged by the appellant. The decision in Walker makes it clear that the English equivalent of an order for lifelong restriction, an indeterminate sentence for public protection (imposed pursuant to section 225 of the Criminal Justice Act 2003), is capable of complying with article 5(1) provided that resources are made available to enable the prison authorities and the Parole Board to fulfil their responsibilities. The same approach would in our opinion apply to a Scottish order for lifelong restriction. We observe that in a case of this nature, where the events giving rise to the sentence are not at the most serious level, it is particularly important that the prison authorities and the Parole Board should carefully monitor the level of risk that the appellant actually poses. In relation to the first principle, it is clear that a causal connection exists between the sentence and the order for lifelong restriction. While the offence giving rise to the sentence was not at the highest level, it was nevertheless plainly serious, especially in its effect on the victim. This was made clear by the sentencing judge, who observed in his report that he was more than satisfied that the crime had a very serious impact on the complainer and that it would be wrong to minimize its seriousness. Moreover, a number of eminent experts all ultimately concurred in the view that the appellant was at high risk of committing similar offences in future.

[24] The appellant's main ground of challenge was based on the second of the foregoing principles: the law was not sufficiently precise and clear to permit a person in the appellant's position to foresee, with appropriate advice, the penal consequences of his action; to that extent the sentence operated in an arbitrary fashion. In our opinion this argument, although attractively presented, must fail. Section 210B of the Criminal Procedure (Scotland) Act 1995 lays down criteria that entitle a judge to order a risk assessment, performed by suitably qualified experts. If that assessment indicates that the risk criteria are met, that is to say, that the accused presents a risk to the safety of the public, the judge is obliged by section 210F to impose an order for lifelong restriction. That order is, of course, subject to regular review by the Parole Board, in the manner described above. All of the foregoing is clearly laid down in sections 210B-210G of the Act and the statutory provisions governing the operation of the Parole Board. These sections cannot in our view be said to operate in an arbitrary fashion; procedures to protect against arbitrary detention are clearly available, in the form of the risk criteria, the need for expert assessment and the regular review of the prisoner's continued detention by the Parole Board. Furthermore, the decision of the House of Lords in Walker, dealing with English legislation that is broadly similar in structure to the Scottish provisions on orders for lifelong restriction (although of much greater complexity) clearly proceeds on the basis that the requirement that the law should not operate in an arbitrary fashion is satisfied provided that the prison authorities and the Parole Board fulfil their duties: see in particular Lord Hope of Craighead at paragraphs [11]-[15].

[25] For the foregoing reasons we will restrict the order for lifelong restriction to charge (1) on the indictment. Otherwise we refuse the appeal.

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