Appeal court upholds lifelong restriction order despite later non-renewal of risk assessor’s accreditation

About this case:

• Citation:
  [2026] HCJAC 44
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

The High Court of Justiciary Appeal Court held that the findings against Dr John Marshall, and the subsequent non-renewal of his Risk Management Authority accreditation, would have made no material difference to the sentencing judge’s conclusion that Henry Laverty met the statutory risk criteria. The court also rejected criticism of the methodology used in Dr Marshall’s risk assessment report.

Laverty pled guilty at an early diet to assaulting his partner in Clackmannan on 21 September 2024. The attack, which was captured on CCTV, involved repeated punching and kicking, including kicks to the head and body while the complainer was on the ground, stamping, spitting and dragging her along the ground. She sustained fractures to six ribs, together with bruising and grazing to her head and face and injuries to both arms.

The charge carried domestic and bail aggravations. The sentencing judge also had before him a record of 49 previous convictions extending from 2004, including 13 for assault, 23 offences committed while on bail and a previous extended sentence for a serious assault on a partner.

The appeal was heard by the Lord Justice Clerk, Lord Matthews and Lord Clark. The opinion of the court was delivered by the Lord Justice Clerk, Lord Beckett. Lenehan KC, instructed by Collins and Co for Dalling and Co, Stirling, appeared for Laverty, while Cameron KC (Sol Adv), instructed by the Crown Agent, appeared for the Crown.

High-risk assessment

Following a risk assessment order, Dr Marshall assessed Laverty as presenting a high risk on the RMA scale. His report described a chronic and entrenched pattern of serious violence in intimate relationships and in the community, together with escalating offending and limited protective factors. He concluded that Laverty’s risk was “enduring, not situational” and that his violence had been “severe, deliberate, and is escalating”.

A second psychologist, Dr Peter Pratt, instructed for Laverty, disagreed with aspects of the assessment. He considered that Laverty’s behaviour in custody and possible capacity for change could support a medium or low risk assessment if his progress continued. Dr Pratt was not, and had never been, accredited by the RMA as a risk assessor.  
The sentencing judge preferred Dr Marshall’s assessment and imposed an order for lifelong restriction on 7 April 2026.

Adverse findings in separate case

Leave to appeal was ultimately granted after information emerged concerning complaints against Dr Marshall in connection with an unrelated risk assessment report prepared in another case. The RMA had communicated its conclusions on those complaints to Dr Marshall on 1 April 2026, six days before he gave evidence at Laverty’s sentencing hearing. Laverty argued that the judge had therefore made his decision without knowing the full position concerning Dr Marshall’s professional standing.

However, information subsequently obtained from the RMA established that Dr Marshall remained fully accredited when he gave evidence. Although the complaints had been determined, no decision had yet been made on his application for a further period of accreditation. His accreditation was later not renewed.

The RMA also drew attention to the applicable accreditation rules, under which termination of accreditation does not ordinarily affect the validity of work carried out by a person while accredited. Laverty maintained that knowledge of the findings would have enabled cross-examination of Dr Marshall and could have affected the weight placed on his evidence.

Risk criteria

The appeal court noted that an order for lifelong restriction must be imposed where the High Court is satisfied on the balance of probabilities that the statutory risk criteria are met, subject to provisions concerning compulsion orders.

Those criteria focus on whether the nature or circumstances of the offence, alone or as part of a pattern of behaviour, demonstrate a likelihood that the offender, if at liberty, will seriously endanger the lives or physical or psychological wellbeing of members of the public at large.

The court said it was ultimately for the sentencing judge to determine the level of risk, taking careful account of the expert assessment. A judge is not bound by the risk assessor’s rating, but if a high-risk assessment is accepted an OLR ought to follow.

Lord Beckett observed that both psychologists considered Laverty to have antisocial personality traits. He had a history of failing to comply with court orders and licence conditions and a record of violence escalating in seriousness. The court considered that Dr Pratt’s conclusion that Laverty might present a medium or low risk rested on “a series of hypotheses … and hopes”.

It also considered that Dr Pratt had focused heavily on Laverty’s behaviour while in prison, whereas the sentencing judge had to assess the risk he would present following release. Previous authority did not regard improved behaviour in the controlled environment of prison, where a prisoner subject to a risk assessment order had an obvious incentive to behave well, as a compelling consideration against the risk criteria being met.

Assessor criticism

The court rejected Laverty’s attempt to draw an analogy with Preece v HM Advocate, a case in which a conviction was eventually quashed after expert scientific evidence central to the prosecution case was shown to be worthless. The court said what happened in Preece “bears no resemblance to the situation before us”.

The only substantive criticism of Dr Marshall’s risk assessment report in Laverty’s case came from Dr Pratt’s objection to use of the Psychopathy Checklist-Revised tool. The court noted, however, that the PCL-R was identified by the RMA as a validated tool for assessing responsivity issues and had formed only a limited part of Dr Marshall’s reasoning.

It also noted that Dr Pratt himself had subsequently been struck off the register of practitioner psychologists following findings of misconduct. Senior counsel for Laverty accepted that Dr Pratt’s professional position was “very much worse” than Dr Marshall’s. No accredited RMA risk assessor had been instructed either at first instance or on appeal to provide an alternative assessment of Dr Marshall’s report.

No material difference

The sentencing judge provided a supplementary report after the issues concerning Dr Marshall became known. Having examined the findings made against him in the separate case, he said they would not have altered his assessment of the evidence or his conclusion that Laverty met the risk criteria.

The appeal court agreed.

It noted that three criminal justice social workers with substantial knowledge of Laverty had supported the imposition of an OLR, indicating that they regarded his risk of violent offending as requiring long-term measures.

Lord Beckett said that even had the sentencing judge known both of the findings concerning Dr Marshall and the subsequent non-renewal of his accreditation, “it would have made no material difference” to the assessment that the statutory criteria were met.

The court could find no fault with that conclusion. It held that there was no basis for finding a miscarriage of justice and refused the appeal.