Alexander Reid V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Johnston,Lord Eassie,Lord Marnoch |
| Neutral Citation | [2007] HCJAC70 |
| Court | High Court of Justiciary |
| Date | 14 December 2007 |
| Docket Number | XC486/05 |
| Published date | 14 December 2007 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Johnston Lord Eassie Lord Marnoch |
[2007] HCJAC70 Appeal No: XC486/05 OPINION OF LORD JOHNSTON in APPEAL by ALEXANDER LEWIS REID Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Bell, QC; Logan; Purdie & Co;
Respondent: Ogg, QC, Crown Agent
14 December 2007
[1] On 8 September 1967 the appellant pleaded guilty to a charge of culpable homicide against a background of an original charge of murder which was reduced by the Crown and accepted by the defence, to that charge on the basis of diminished responsibility. The trial judge had before him two reports by respectively James Watson Macpherson (Appendix 1, tab 2) and John Campbell (Appendix 1, tab 3) ("the reports"). He also heard oral testimony from those doctors and without opposition pronounced a hospital order and order restricting discharge under the Mental Health (Scotland) Act 1960, sections 55 and 60. (Appendix 1, tab 1). The stated mental disorder from which the appellant was said to be suffering was mental deficiency. The appellant was accordingly committed to the State Hospital at Carstairs where he has resided ever since.
[2] Over the years quite apart from his case being reviewed internally by the hospital doctors, the appellant, once it became possible for him to do so, made a number of applications to the Sheriff at Lanark to obtain his release, all of which were unsuccessful. He then had recourse to the civil courts by way of judicial review which was initially successful in the Second Division (1997 SC 49). However, that decision was to some extent overturned by the House of Lords (1998 SC (HL) 17). The House affirmed the decision of the Second Division that the approach of the Sheriff at Lanark had been wrong but reversed their decision to the extent to ordering that the matter be reverted back to the Sheriff for further consideration. However, before that could happen the Scottish Parliament intervened with legislation preventing such a review if the applicant was regarded as a danger to the public. This was the case as regards the appellant and his review process in the civil courts accordingly came to an end by operation of statute, now incorporated in the Mental Health (Care and Treatment) (Scotland) Act 2003.
[3] The appellant thereafter resorted to the criminal courts and lodged an application for leave to appeal against the hospital order granted in 1967, under section 60 of the Criminal Procedure (Scotland) Act 1995. It is to be noted that this amended legislation now refers to a compulsion order rather than a hospital order but that is pure terminology. The application was made in 2005 and leave was granted.
[4] The basis of the application which was to be supported by further medical evidence was that the original hospital order was not based on adequate or indeed any appropriate evidence.
[5] After sundry procedure the case duly called before this Court which heard evidence from a total of four psychiatrists, Drs Chiswick, Crichton and Gray on behalf the appellant and Dr Bell on behalf the respondent. The Lord Advocate appeared in the public interest, subjected the witnesses to cross-examination and adopted the position quite appropriately of contradictor in the public interest.
[6] Only Dr Chiswick in the course of the history of the appellant had treated the appellant when the doctor was working in the State Hospital in the mid-1970s. All four doctors had made a recent examination of the appellant and presented reports together with their oral evidence.
[7] Having heard the evidence I make the following findings in fact.
1. Opinions differed whether the appellant met or might have met the test of mental deficiency in 1967. Dr Chiswick described the case as borderline but the IQ testing from the initial stages of the process rated the appellant at above 70 which was normally the level for mental deficiency. Dr Bell was of the view that it was possible that the test for mental deficiency was met in 1967 but she could not say for certain since she was not in possession of all the evidence that was probably available at that time.
2. The appellant is now and probably always has suffered from a personality disorder although the doctors were of the view that such would be difficult to diagnose in view of his age, ie, under 18, in 1967. His condition shows social dysfunction and manifest examples of aggressive behaviour.
3. Throughout his time in the State Hospital, the appellant was subjected to an annual review by the doctors and there are repeated entries in the medical records spoken to particularly by Dr Chiswick that from year to year no doctor considered that he should not be retained in the State Hospital. Although there is some mention of personality disorder, the basis for that continued detention appeared to remain mental deficiency.
4. The reports presented at the time did not extrinsically reflect sufficient testing had been carried out on the appellant to support a clear finding of mental deficiency.
5. At the hearing in 1967 those reports were however fenced by oral testimony, a record of which is no longer available.
6. Personality disorder is now a recognised mental disorder which can justify retention in the State Hospital.
7. Personality disorder, however, is susceptible to treatment both in prison and in hospital and accordingly it is not the case that the condition from which the appellant suffers is now "only" treatable in the State Hospital, now a necessary statutory requisite for detention in that institution. At the present time therefore, he does not qualify for detention in the State Hospital on that ground.
8. If the matter was being considered de novo as if the offence had been committed at the present time, the likely outcome would have been a prison sentence probably for an indeterminate period.
[8] Having made those findings it is important to emphasise four factors.
[9] In the first place, in 1967 both sides of the bar recognised that diminished responsibility was relevant and established and this was accepted by the Court inevitably when faced with a disposal. No challenge was therefore made at the time to the findings of mental disorder which led to the hospital order. Indeed it has to be said that at the time everybody involved was clearly of the view that it was in the interests of this vulnerable young man not to go to prison. Therefore the starting point for the Court was a disposal which involved diminished responsibility reflecting a mental disorder recognised at that time by the law.
[10] Secondly, much of the diagnosis and discussion from the doctors who gave evidence to us was achieved with hindsight going back over the records. While this was a perfectly legitimate exercise, it is not necessarily conclusive or even relevant to the original finding made by the trial judge in 1967. I consider the proper relevance of the issue of hindsight is whether or not the medical review process was properly carried out, particularly in the 1970s and 80s.
[11] Thirdly, it is not in my view entirely appropriate to regard this case as a fresh evidence case applying the principles that apply to such an application to this Court. I consider the Court is more concerned with the true status of the original order in 1967.
[12] Fourthly, quite apart from the medical evidence there remains the overall question of miscarriage of justice which I consider at the end of the day to be the test to be applied if the Court is intending to quash the order made in 1967.
[13] The submissions of counsel for the appellant were simple but stark. He submitted that upon the evidence the reports were wholly inadequate to base a finding of mental deficiency, there being no evidence that proper testing such as the text books required at the time had been carried out to make a proper assessment of the appellant's IQ which was the basic way of determining the existence of mental deficiency. Given that fact, he submitted, the original hospital order could not stand and must be quashed being in itself a miscarriage of justice because it was wrongly or inadequately based. The fact that at the time diminished responsibility was accepted by everybody to be relevant and indeed the driving force in the determination that was nothing to the point if it was again not adequately based upon the evidence. The appellant never had suffered from mental deficiency as properly understood which had to be a condition emanating from birth and never disappearing, even if it to some extent improved symptomatically.
[14] Counsel accepted that, if looked at at the present time against the present statutory background and the relevant facts, the appellant would not be committed to the State Hospital for the reasons I have already found, namely that such treatment as he may require while falling within the definitions in the relevant legislation is equally available in prison and that defeats the word "only" as regards committal to the State Hospital. If the same circumstances included diminished responsibility existed at the present time in this hypothetical situation counsel accepted that the inevitable result would be not a compulsion order to the State Hospital but rather a prison sentence. He accepted in view of the fact that the appellant was a danger to the public that at this time the only realistic sentence as such was a discretionary life sentence. He maintained, however, that the appellant was entitled to this order, ie. commitment to prison because that opened different lines of review, namely the Parole Board, particularly from that which is available in the State Hospital. He accordingly invited us to make such an order, namely a quashing of the hospital order and the substitution of an indeterminate life sentence in prison.
[15] The Advocate Depute in his submissions relied upon Dr Bell at least to the extent that she, being an...
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