Brian Johnstone V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bracadale,Lord Drummond Young,Lord Justice Clerk |
| Neutral Citation | [2011] HCJAC 66A |
| Court | High Court of Justiciary |
| Docket Number | XC774/09 |
| Date | 05 July 2011 |
| Published date | 05 July 2011 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Drummond Young Lord Bracadale | [2011] HCJAC 66A Appeal No: XC774/09 OPINION OF THE COURT delivered by LORD DRUMMOND YOUNG in appeal by BRIAN JOHNSTONE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
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;
...
and
(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...
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