M.j.j.a.b. V. The Scottish Ministers

JurisdictionScotland
JudgeLord Mackay of Drumadoon,Lord Eassie,Lord Hodge
Judgment Date08 April 2010
Neutral Citation[2010] CSIH 31
CourtCourt of Session
Docket NumberXA65/07
Date08 April 2010
Published date08 April 2010

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

Lord Eassie

Lord Mackay of Drumadoon

Lord Hodge

[2010] CSIH 31

XA65/07

OPINION OF THE COURT

delivered by LORD EASSIE

in the appeal

by

M J J A B (AP)

Appellant;

against

THE SCOTTISH MINISTERS

Respondents;

_______

Appellant: L Dunlop, Q.C.; Collins; Drummond Miller LLP

Respondents: R Crawford, Q.C.; S Smith; The Office of the Solicitor to the Scottish Government

8 April 2010

Introductory

[1] On 10 May 1996, following his having pled guilty in Kilmarnock Sheriff Court to a charge of assault and robbery and a charge of assault, the appellant was made the subject of a hospital order under section 58 of the Criminal Procedure (Scotland) Act 1995 - "the 1995 Act" - requiring his compulsory detention in the State Hospital at Carstairs. The sheriff at Kilmarnock also made a restriction order under section 59 of the 1995 Act restricting his discharge from hospital. While on remand prior to sentence in respect of those two charges the appellant had been transferred to the State Hospital for assessment and had been diagnosed as suffering from schizophrenia, that condition being the basis for the making of the hospital order. He had a previous history of involvement with the psychiatric services and of drug misuse.

[2] The assault and robbery to which the appellant pled guilty occurred in January 1996. The circumstances appear to have involved the presentation of a knife to two persons and robbery of certain of their personal property, including a mobile telephone. The assault in question occurred a few days later when the police sought to apprehend the appellant; he struck one of the officers on the shoulder with a wooden fence stob.

[3] On 8 December 1997 the appellant was transferred from the State Hospital to Ailsa Hospital, Ayr, where he remained until 19 July 1998 when he absconded to Blackpool. In due course he was detected and returned to Ailsa Hospital, whereupon the appellant was then transferred back to the State Hospital at Carstairs. He remained in detention in the State Hospital until 4 April 2005 when he was again transferred to Ailsa Hospital, in which hospital he continued to be detained in terms of the hospital order when, on 14 September 2005, he made a summary application to the sheriff at Ayr under section 64 of the Mental Health (Scotland) Act 1984 - "the 1984 Act". This appeal is concerned with that summary application, in which the appellant craves either absolute discharge, or alternatively his conditional discharge, from the hospital order pronounced on 10 May 1996.

[4] The proceedings in the sheriff court at Ayr appear to have proceeded at a relatively slow pace, with sists for reports; continuations for discussions and negotiations; and fixing of various diets of proof which were later discharged.

[5] A contributing factor to the delay in disposing of the application was no doubt the facts that, roughly seven months into the process, on 2 or 3 May 2006 the appellant absconded from Ailsa Hospital and was at liberty for some five days until he was detained on 7 May 2006. On 31 August 2006 he was convicted in the sheriff court of possession of diamorphine and an attempt to pervert the course of justice and was sentenced to a backdated sentence of seven months' imprisonment. In the event he was returned to Ailsa Hospital. But then, on 26 September 2006, the appellant again absconded from Ailsa Hospital along with a female inmate in the hospital, MH, with whom he had formed a liaison during his earlier stay in Ailsa in 1998. The appellant and Ms H, assisted by the appellant's mother, went first to Blackpool and thereafter to Kilmarnock where the appellant was eventually detected and detained on 16 October 2006. After a period in HMP Barlinnie he was returned to the State Hospital on 29 December 2006.

[6] So far as the appeal to the sheriff was concerned, the parties' representatives had agreed on 10 August 2006 that a proof was appropriate. The position adopted by the respondents, the Scottish Ministers, in their answers to the application was that the appellant required to be detained in hospital for treatment and that a "package" required to be put in place before any conditional discharge could be contemplated. The proof which had been thus agreed commenced on 22 January 2007. It continued on various isolated dates in the early part of 2007 and was finally concluded on 22 March 2007. No attempt was made to amend the original pleadings to focus any of the issues arising by reason of the events which had taken place after 10 August 2006. The sheriff gave judgment on 5 April 2007 refusing the application. A crucial part of his interlocutor of that date, against which this appeal is taken, is his single finding in fact and law which reads:

"...that the Applicant being a restricted patient subject to a Restriction Order is suffering from a mental disorder, the effect of which is such that it is necessary, in order to protect the public from serious harm, that the patient continue to be detained in a hospital whether for medical treatment or not".

[7] As will become more evident from the later discussions of the issues arising in this appeal, the sheriff's decision to refuse discharge proceeded on his assessment of the evidence (led without any basis in the pleadings) as to what the respondents contended occurred in the relationship between the appellant and Ms H while they were both on abscond from Ailsa Hospital between 26 September 2006 and 16 October 2006. Among the findings in fact made by the sheriff respecting that relationship was, in particular, finding in fact 43 which is in these terms:

"While MB and MH were in Blackpool MB had sexual intercourse on several occasions with MH against her will without her consent, she refusing consent because of his moods, he carrying on to proceed to sexual intercourse in spite of her expressed wishes to the contrary". ["MB" is a reference to the appellant]

Counsel for the appellant submitted that this was a finding that the appellant had committed the crime of rape and that this was a crucial finding, central to the sheriff's decision. For her part, counsel for the respondents disputed the centrality of the finding. She was also reluctant to categorise it as a finding of rape. For our part we consider that it is clear from the terms of the sheriff's note that he considered that he had made a finding that the appellant had committed the crime of rape. The sheriff says (p 54 of the appeal print):

"[the appellant], according to our current law, carried out the crime of rape upon MH in that he proceeded against her will to have sexual intercourse with her".

[8] So far as concerns the appellant's mental health, while the mental health diagnosis upon which he had been made the subject of the hospital order on 10 May 1996 was schizophrenia, at the time of his application to the sheriff at Ayr, and of the proof, it was not disputed that he no longer suffered from schizophrenia. Indeed a generally prevailing view was one of questioning the soundness of that initial diagnosis on the basis that, with hindsight, his mental state in May 1996 was more likely to have been a drug induced psychotic episode. But at all events, the position at the time of the sheriff's decision was that the appellant suffered from "antisocial personality disorder, otherwise dissocial personality order, these descriptions being products of two different diagnostic tools" (see finding in fact 66).

[9] Notwithstanding the terms of their answers to the summary application, it was not suggested to the sheriff by the respondents that continuing detention on a compulsory basis in the mental health system could be justified on the view that the appellant's condition was susceptible to treatment. It could only be justified on the view that the personality disorder from which he was now considered to suffer rendered it necessary, in order to protect the public from serious harm, that the appellant be detained indefinitely in a secure mental hospital, even though there was no treatment available for him which would alleviate, or prevent a deterioration in, his personality disorder.

[10] The statutory basis for compulsory, indefinite detention in a mental institution on grounds of public safety, notwithstanding the unavailability of treatment, is s.64(A1) of the 1984 Act. That provision, inserted by later amendment, has a history which it is appropriate now to mention.

The legislative history

[11] At the time at which the appellant was made the subject of the hospital order, the test for making such an order (so far as pertinent in the present case) was that the court be satisfied on the written or oral evidence of two medical practitioners that the grounds set out in section 17(1) of the 1984 Act applied to the offender and that the making of the hospital order was, put shortly, the most suitable method of disposing of his case. Section 59 of the 1995 Act enabled the court to make an order restricting discharge of an accused if the court considered that "(a) having regard to the nature of the offence with which he is charged; (b) the antecedents of the person; and (c) risk that as a result of his mental disorder he would commit offences if set at large, that it is necessary for the protection of the public from serious harm" to make such an order. The effect of a restriction order was to place a number of restrictions on the discharge of a patient, one of the principal effects being to transfer authority for deciding on discharge to the Scottish Ministers. However, a restriction order did not affect the basis for detention, which was section 17(1) of the 1984 Act.

[12] The terms of section 17(1) of the 1984 Act were as follows:

"A person may ...be admitted to a hospital and there detained on the grounds that -

(a) he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive...

To continue reading

Request your trial
10 cases
  • Swift Advances Plc Against James Bain Martin And Others
    • United Kingdom
    • Court of Session
    • 4 Septiembre 2015
    ...Hendersons’ offer. The reasonableness test is discretionary, and the usual principles on appeal apply (Accord Mortgages Limited v Cameron [2010] CSIH 31 paragraph 3). Mr O’Brien noted that section 24(7)(b) requires the court to have regard to “the ability of the debtor to fulfil within a re......
  • The Scottish Ministers V. Russell Stirton+alexander Anderson's Executor
    • United Kingdom
    • Court of Session
    • 11 Octubre 2013
    ...and the inherent unlikelihood of the events having occurred had to be overcome in assessing the probabilities (B v Scottish Ministers, 2010 SC 472, Lord Eassie at paras [41]-[42]; In re S-B (Children) (Care Proceedings: Standard of Proof) (supra)). The Lord Ordinary had failed to have prope......
  • AW v Principal Reporter
    • United Kingdom
    • Sheriff Appeal Court
    • 25 Octubre 2021
    ...11; [2008] 3 WLR 1; [2008] 4 All ER 1; [2008] 2 FLR 141; [2008] 2 FCR 339; [2008] Fam Law 837; [2008] Fam Law 619 B v Scottish Ministers [2010] CSIH 31; 2010 SC 472; 2010 SLT 537 C v Miller 2003 SLT 1379; 2004 SCLR 55 CM v ME-M [2019] SAC (Civ) 30; 2019 Fam LR 125 Edinburgh Council (City of......
  • S.a. V. D.a.+marion Foy
    • United Kingdom
    • Court of Session
    • 13 Febrero 2013
    ...which follows. [17] In the course of submissions reference was made to the following cases: In re B 2009 1AC 11; B v Scottish Ministers 2010 SC 472; T v T 2001 SC 337; HMA v A 2005 SLT 975; Thomas v Thomas 1947 SC (HL) 45; Duncan v Wilson 1940 SC 221; Morrison v Kelly 1970 SC 65; Bryce v BR......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT