Crown loses appeal seeking OLR for fraudster who assaulted man when confronted after theft from pensioner

About this case:

• Citation:
  [2026] HCJAC 2
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Beckett

Robert Markward, who had a history of convictions for theft, was found guilty of ten charges at the High Court in Kilmarnock, nine of which were crimes of dishonesty and the tenth an assault to injury. The respondent invited the court to refuse the appeal on the basis that the sentence imposed was fully reasoned, and the criteria to contemplate making a risk assessment order were not met.

The appeal was heard by the Lord Justice Clerk, Lord Beckett, with Lord Matthews and Lord Armstrong. Harvey, advocate depute, appeared for the Crown and Bendle, advocate, for the respondent.

Escalated to violence

Except for charges 9 (the assault) and 15 (theft of a parcel from a doorstep), the charges disclosed a pattern of the respondent using deception to gain entry to the homes of elderly victims, some of whom were in their nineties. After gaining entry to the properties by posing as a tradesperson or someone known to friends or family of the complainer, he stole items such as bank cards, bus passes, and money. He would sometimes reinforce the plausibility of his false representations by using pieces of information such as the name of a relative or a local worker’s name likely to be known to the victim.

On the morning of 24 March 2023, the respondent had fraudulently accessed some flats in a retirement complex in Ayr. At around 11am, the complex manager and her husband, Doreen and Robert Bushell, received a phone call from one of the complainers saying a man had come into her flat and stolen money. On the way to the flat they encountered the respondent, and a tussle ensued between him and Mr Bushell. At one point, the respondent swung a gate at Mr Bushell and struck him on the leg, which resulted in a bruise.

The respondent was noted as having a criminal record extending from 1986, following his release from 18 years at the Royal Scottish National Hospital aged 25. He had previously been imprisoned on several occasions for theft, the most recent occasion being a seven-year sentence from 2016 following on from another 7-year sentence from 2010, both with attached return orders.

The sentencing judge described his social work report as “sorry reading” and considered only a custodial sentence would be appropriate. However, an OLR was not appropriate to resolve the serious problem with his behaviour, as the elderly complainers spoke to being “a bit shaken” but with no serious psychological trauma as to pose a risk of serious harm to the public at large.

For the Crown it was submitted that the respondent had a pattern of similar offences and had offended whilst subject to early release, as demonstrated by the return orders imposed on his two most recent sentences. He had now escalated to violence when interrupted. The sentencing judge had erred in her overall assessment of the JSWR, the author of which had been the respondent’s social worker for four years and was uniquely placed to assess him.

Comparatively minor assault

Delivering the opinion of the court, Lord Beckett said of the circumstances of appeal: “There can be no appeal against the judge’s decision not to make a risk assessment order. What the Crown is seeking to persuade us to do was foreshadowed in LB and Mitchell v HM Advocate (2024). In LB, the Lord Justice Clerk (Dorrian) envisaged that in a Crown appeal such as this, if the court were persuaded that the sentence was unduly lenient and it determined to impose a different sentence, then the court could make a risk assessment order. Indeed, we note from the terms of s 210B(2) of the Criminal Procedure (Scotland) Act 1995, that the court would be bound to do so if it considers that the risk criteria may be met.”

He continued: “This is why the Crown has sought to persuade us that the sentence is unduly lenient because, unless it can do so, there can be no challenge to the judge refraining from making a risk assessment order. Undue leniency is the first question we shall have to decide. Even if we are satisfied that the sentence imposed was unduly lenient, there would be a further question as to whether there is a proper basis for us to make a risk assessment order.”

Considering the difficulties faces by the Crown in this regard, Lord Beckett said: “In both her sentencing remarks, and in her detailed, well-reasoned and helpful report, the judge, who saw and heard the evidence, makes it abundantly clear that she carefully considered all the information before her and applied her mind to all relevant sentencing factors. For crimes of this kind, the sentence was a substantial one, but it was appropriate against the background of the respondent’s history of repeated offending in this way. We are not persuaded that it was unduly lenient and that is sufficient to refuse the appeal.”

He concluded: “This comparatively minor assault, albeit attended by some aggravating circumstances, is not sufficient. It was not a vulnerable householder that the respondent assaulted but a person who had some connection with the premises and sought to intervene as the respondent sought to leave, having committed the crimes in charges 7 and 8. We are not persuaded that taking it along with the respondent’s violent encounters with the police more than 30 years ago and events in hospital in 1996 can provide a pattern of behaviour signalling endangerment to the lives, physical or psychological wellbeing of members of the public at large.”

The appeal was therefore refused.